THE 


LAW    OF    RAILWAYS: 


EMBRACING 


CORPORATIONS,  EMINENT  DOMAIN,  CONTRACTS, 
.      COMMON    CARRIERS    OF    GOODS    AND'  PAS- 
SENGERS,   CONSTITUTIONAL   LAW, 
INVESTMENTS,  &c,  &c. 


ISAAC    F.  REDFIELD,  LL.  D., 

Ml 

CHIEF   JUSTICE   OF   VERMONT. 


THIRD     EDITION,     GREATLY     ENLARGED, 


VOL.  I. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY 
1867. 


T 

R2475r 

IS67 
Vol  *  1 


Entered  according  to  Act  of  Congress,  in  the  year  1857,  by  Isaac  F.  Redfield,  in 
the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1858,  by  Isaac  F.  Redfield,  in 
the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1867,  by  Isaac  F.  Redfield,  in 
the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


University  Press:  Welch,  Bigelow,  &  Co., 
Cambridge. 


PREFACE   TO   THE  THIRD   EDITION. 


The  present  edition  has  been  prepared  with  special 
reference  to  making  it  acceptable  in  its  scope  and  char- 
acter to  the  practising  lawyer  in  all  the  numerous  de- 
partments of  the  profession  here  touched.  It  will  be 
found  on  examination  that,  by  nearly  doubling  the  ex- 
tent of  the  work,  many  new  and  important  topics  have 
been  brought  under  consideration,  and  many  others 
made  more  complete.  The  important  subjects  of  Cor- 
porations and  Common  Carriers  are  here  treated  in  a 
manner  as  complete  as  practicable,  perhaps,  within  the 
limited  space  devoted  to  them.  We  believe  these  topics 
in  particular  will  be  found  to  be  here  presented  in  a 
manner  to  afford  great  assistance,  both  to  learners  and 
practitioners. 

In  addition  to  these  leading  topics,  there  are  numerous 
others  here  discussed  in  a  manner  more  or  less  at  length, 
according  to  circumstances,  but  always  with  a  view  to 
give,  both  the  student  and  the  practitioner,  the  greatest 
possible  aid  in  coming  directly  at  what  he  is  required  to 
know  and  to  use  in  the  active  business  of  the  profession. 
Among  these  are  Contracts,  Eminent  Domain,  Mandamus, 
Certiorari,  Quo  Warranto,  Equity  Jurisdiction,  Indictment 
of  Corporations,  Taxation,  Constitutional  Questions,  Rail- 


iv-  preface  to  the  third  edition. 

way  Investments,  Dividends,  Police,  and  Amalgamation  of 
Railways,  and  some  others. 

Our  highest  effort  has  been  to  produce  a  book  use- 
ful and  acceptable  to-  the  profession,  and  thoroughly  re- 
liable. 

I.  F.  K. 

Boston,  January,  1867. 


PREFACE  TO   THE  SECOND   EDITION. 


The  short  time  which  has  intervened,  since  the  first 
publication  of  the  work,  has  not  afforded  as  much  oppor- 
tunity for  thorough  revision  as  was  anticipated  at  that 
time.  But  all  has  been  done  which  the  time  would 
allow. 

All  the  decisions  which  have  since  appeared,  both  in 
England  and  America,  and  they  are  more  numerous  and 
important  than  could  have  been  anticipated,  in  so  short  a 
period,  have  been  carefully  collated,  and  every  point  de- 
cided inserted  in  its  appropriate  place  in  the  work.  And 
where  the  subject  was  deemed  of  special  interest  to  the 
profession  and  the  public,  the  leading  views  maintained, 
in  some  of  the  most  thoroughly  reasoned  opinions,  have 
been  inserted.  These  extracts  are  chiefly  confined  to  the 
subjects  of  railway  investments,  and  the  rights  of  attach- 
ing and  levying  creditors  of  railway  companies ;  and 
while  they  do  not  add  many  pages,  do  add,  it  is  believed, 
very  considerably  to  the  value  of  the  work. 

The  present  edition  is  more  complete  and  more  cor- 
rect in  some  particulars  than  the  former  one,  and  is  not 
enlarged  to  an  inconvenient  size.  It  is  commended,  with 
renewed  assurances  of  the  most  sincere  gratitude  for  past 
favors  to  the  patronage  of  a  profession  proverbially  lib- 
eralized by  its  learning,  and  made  indulgent  by  its  prac- 
tical wisdom,  and  the  extent  and  variety  of  its  attain- 
ments. 

I.  F.  R. 

Windsor,  Vt.,  May  26,  1858. 


PREFACE. 


This  work  was  undertaken  with  the  purpose  of  supply- 
ing, what  seemed  to  the  writer  a  want,  if  not  a  neces- 
sity, to  the  profession  in  this  country ;  a  book  upon  the 
law  of  railways,  which  should  present,  within  reasonable 
compass,  and  in  a  properly  digested  form,  the  whole  law 
upon  the  subject,  both  English  and  American.  No  trea- 
tise  had  attempted  this.  And  the  attempt  has  confirmed 
the  expectation,  that  the  accomplishment  of  such  an  un- 
dertaking would  be  attended  with  labor  and  perplexity. 

It  seems  desirable  that  such  a  work  should  present 
every  case  which  has  been  decided  in  both  countries,  in 
such  a  form  as  to  make  the  point  of  decision  plain  and 
obvious,  and  at  the  same  time  not  convert  a  treatise  into 
a  mere  digest.  A  mere  treatise,  too,  upon  the  principles 
involved  in  the  several  departments  of  the  law  brought 
under  discussion  in  such  a  work,  would  be  of  little  bene- 
fit except  to  the  student.  This,  too,  will  be  found  in  the 
approved  treatises  already  published  upon  these  several 
subjects.  On  the  other  hand,  a  digest  of  the  cases  upon 
any  plan,  however  comprehensive  or  philosophical  might 
be  the  analysis,  would  appear  an  unsatisfactory  labor 
when  we  have  already  so  much  of  the  kind. 

It  is  the  endeavor  of  this  undertaking  to  combine  the 
two  in  such  a  manner  as  to  render  the  work  intelligible, 
and  interesting  as  an  exposition  of  the  principles  in- 
volved ;  and  at  the  same  time  present  a  thorough  analy- 


Till  PREFACE. 

sis  and  digest  of  all  the  important  cases  upon  the  subject, 
in  such  a  manner  as  to  enable  the  reader  at  once  to 
know  the  result  of  all  the  decisions  upon  the  several  top- 
ics discussed. 

The  plan  of  the  work  is  mainly  new,  and  the  effort  has 
been  to  render  it  natural,  simple,  and  comprehensive. 
The  manner  of  arranging  the  heads  to  the  several  sub- 
divisions has  been  adopted  chiefly  with  a  view  to  enable 
the  -profession  to  find  at  once  whatever  the  work  con- 
tains upon  any  topic  or  question. 

How  far  the  design  of  the  author  has  been  accom- 
plished, he  submits  to  the  indulgent  judgment  of  his  pro- 
fessional brethren  who  have  hitherto  shown  him  so  much 
forbearance.  In  justice  to  himself,  perhaps  it  should  be 
here  mentioned,  that  the  work  has  been  prepared  under 
some  disadvantages,  from  the  constant  pressure  of  official 
duties  which  could  not  be  required  to  accommodate  them- 
selves, in  any  respect,  to  the  demands  of  this  subordinate 
labor.  It  has  thus  happened,  that,  although  a  considera- 
ble time  has  elapsed  since  the  work  was  seriously  taken 
in  hand,  it  has  of  necessity  been  done,  to  a  great  extent, 
at  such  intervals,  more  or  less  extensive,  as  circumstances 
would  allow  the  writer  to  command,  and  always  in  haste. 

If  some  mistakes  should  be  discovered,  therefore,  and 
some  graver  faults  even,  it  is  hoped  that  the  profession 
will  bear  with  them  ;  with  the  assurance  that,  if  the  work 
should  be  found  of  sufficient  importance  to  require  an- 
other edition,  they  will  be  corrected ;  and  that,  if  no  such 
demand  should  be  made,  the  work  has  probably  received 
as  much  labor  as  it  deserves. 

I.  F.  R. 

Windsor,  Vt.,  November  20,  1857. 


ANALYSIS    OF    THE    CONTENTS. 


0^=*  The  citations  to  other  portions  of  the  work  are  thus  expressed,  §  —  pi.  n.  — .  and  the 
§§  are  placed  in  the  inner  margin  of  the  pages,  for  convenience  of  reference.  The 
original  paging  is  preserved  in  this  edition  at  the  bottom  pf  the  page. 


CHAPTER  I. 

INTRODUCTION. 

PAGH 

1.  Origin  of  railways  in  England 1 

2.  First  built  upon  one's  own  land,  or  by  special  license  from  the  owner  1,  2 

3.  Questions  in  regard  to  private  railways         ......  2 

4.  Railways  in  America,  public  grants           ......  3 

5.  Use  of  steam-power  on  railways  ........  3 

6.  The  franchise  of  a  railway  not  necessarily  corporate  nor  unassignable  4 


CHAPTER  II. 

PUBLIC   RAILWAYS   AS   CORPORATIONS.  —  PRELIMINARY   ASSOCIATIONS. 

SECTION  I. 

MODE   OF    INSTITUTING    RAILWAY    PROJECTS. 

1.  Subscribers'  Associations  in  England  .         .         .         .         .         .  5 

2.  Subscribers  bound  by  subsequent  charter        .         .         .         .         .  5,  6 

3.  Issue  and  registry  of  scrip  certificates          ......  6 

4.  Original  subscriber  liable  to  unregistered  purchaser        ...  6 

5.  Holders  of  scrip  entitled  to  registry 6,  7 

6.  Preliminary  associations  not  common  in  this  country       ...  7 

7.  Petitioners  for  incorporation  file  plan  and  surveys      .         .         .         .  7,  8 

8.  Present  English  statutes 8 

9.  Preliminary  associations  may  be  registered          .....  8 
10.  Not  now  held  responsible  as  partners  in  England    ....  8 

^SECTION  II. 

CONTRACTS    OF    THE   PROMOTERS    NOT    BINDING    AT    LAW    UPON    THE    COMPANY. 

1.  In  this  country  promoters  only  bind  themselves  and  their  associates      .  9,  10 

2.  Contracts  of  promoters  not  enforcible  by  company  .         .         .         .      10,  11 

3.  But  by  consenting  to  a  decree  in  equity  setting  up  the  contract,  the 

company  will  be  held  to  have  adopted  it 11 


X  ANALYSIS   OF   THE   CONTENTS. 

SECTION   in. 

SUBSCRIBERS    TO    THE    PRELIMINARY    ASSOCIATION    INTER   8ESE. 

1.  Liability  for  acts  of  directors  limited  by  terms  of  subscription  .  .  11,  12 

2.  Association  not  binding  until  preliminaries  are  complied  with        .  1 2 

3.  Contracts,  how  far  controlled  by  oral  representations  of  directors  .  1 2 

4.  Subscribers  not  excused  by  directors  from  paying  calls          .  12 

5.  Not  liable  for  expenses  except  by  terms  of  agreement       .         .  .         13 

6.  Deeds  of  association  generally  make  provision       ....  13 

7.  One  who  obtains  shares  without  executing  the  deed  not  bound  to 

contribute 13 

n.  11.  No  relation  of  general  partnership  subsists  between  subscribers      13-15 

SECTION    IV. 

CONTRACTS  OF  THE  PROMOTERS  ADOPTED  BY  THE  COMPANY. 

1.  Liability  may  be  transferred  with  assent  of  creditors        .         .         .14-16 
n.  3.  Powers  of  provisional  company  to  contract  limited  by  statute     .  16 

SECTION  V. 

HOW    CONTRACTS    OF   THE    PROMOTERS   MAY    BE    ADOPTED    BY    THE    COMPANY. 

Cannot  assume  the  benefit  without  the  burden 16,17 

SECTION    VI. 

CONTRACTS    BETWEEN    THE    PROMOTERS   AND    OPPOSERS    OF    A    BILL   FOR   THE 
CHARTER   OF   A   RAILWAY. 

1 .  English  cases  numerous 17 

2-5.  Lord  Eldon's  opinion  in  the  case  of  Vauxhall  Bridge  Co.  .         .      1 7  -  20 

SECTION  VII. 

CONTRACTS  OF  THE  PROMOTERS  ENFORCED  IN  EQUITY. 

1-3.  Case  of  Edwards  v.  Grand  Junction  Railway         .         .         .         .20-23 

section  vni. 

CONTRACTS    OF    THE    PROMOTERS    BINDING    UPON    THE    COMPANY    AT    LAW. 

1-3.  Case  of  Howden  v.  Simpson 23-25 

SECTION  IX. 

WHAT  CONTRACT8  BETWEEN  THE  PROMOTERS  OF  RAILWAYS  AND  OTHERS  WILL 
BE  ENFORCED,  EITHER  IN  LAW  OR  EQUITY,  AGAINST  THE  CONTRACTING 
PARTIES    OR   THE    COMPANY. 

1.  Contract  to  take  land  of  opposing  party   .         .         .        .        .         .         25 

2.  Contract  prejudicial  to  the  public 25,  26 

SECTION  X. 

COURTS    OF   EQUITY    WILL   ENFORCE    C0NTRACT8   WITH    THE    PROMOTERS. 

1.  Bonafi.de  contract,  not  evading  statute,  valid 26 

n.  3.  Statement  of  English  cases 26-37 


ANALYSIS   OF   THE   CONTENTS.  XI 

SECTION    XI. 

SUCH    CONTRACTS   ENFORCED   WHERE    THE    RAILWAY    IS    ABANDONED. 

1.  Where  a  certain  sum  is  to  be  paid  to  quiet  opposition      .         .         .27-33 

2.  Merely  provisional  contracts  not  always  enforced         .         .         .       34-39 

SECTION  XII. 

PRACTICE   OP    COURTS   OF   EQUITY    IN    DECREEING    SPECIFIC    PERFORMANCE. 

1.  Mutual  arrangements  protected  in  chancery     .         .         . '       .         .39,40 

2.  But  decisions  are  conflicting.     In  cases  of  doubtful  right,  plaintiff  is 

remitted  to  common-law  remedies 40,  4 1 

n.  2.  Statement  of  cases 40-44 

SECTION  XIII. 

SPECIFIC   PERFORMANCE    IN    COURTS   OF   EQUITY. 

Object  of  courts  to  compel  good  faith  when  a  definite  contract  is  made,    42-44 

SECTION  XIV. 

COURTS   OF   EQUITY    WILL  RESTRAIN    A   PARTY    FROM    OPPOSITION    OR   PETITION 

IN    PARLIAMENT. 

Such  cases  not  common  in  practice 45 

SECTION  XV. 

CONTRACTS   TO    WITHDRAW   OPPOSITION   TO    RAILWAY    PROJECTS   AND   TO    KEEP 
THIS    SECRET,    AGAINST   SOUND  POLICY,    AND    SEEM    TO    BE    ILLEGAL. 

1.  Principle  of  foregoing  decisions  obscure 46 

2.  Not  adopted  in  this  country  unless  terms  inserted  in  charter  .         .       46,  47 

3.  Recent  change  of  views  in  English  courts 47,48 

3-5.  Statement  of  late  case  in  which  principle  of  Edwards  v.  Grand 

Junction  Railway  is  doubted 47,  48 

6.  Act  of  incorporation  should  not  be  varied  by  oral  testimony      .         .         48 

7.  Contracts  to  quiet  opposition  not  favored  in  this  country       .         .       48,  49 
n.  5.  Recent  English  and  American  decisions 49,  50 

CHAPTER  IE. 

RAILWAYS   AS   CORPORATIONS. 

SECTION    I. 
ORIGIN    AND   DIFFERENT    CLASSES   OF    CORPORATIONS. 

1.  The  existence  of  corporations  dates  very  early          .         .         .  .  51 

2.  The  different  kinds  of  corporations,  sole  and  aggregate          .         .  51,52 

3.  This  work  treats  principally  of  aggregate  joint  stock  corporations  .  52 

4.  Corporations  are  either  ecclesiastical  or  lay 52,  53 

5.  So  they  are  divided  into  eleemosynary  and  civil  corporations    .  .  53 

6.  Corporations  are  public  or  private 53 

7.  Private  corporations  where  stock  is  private  property        ...  53 


Xll 


ANALYSIS   OF   THE   CONTENTS. 


8.  Public  corporations  where  stock  is  owned  and  management  retained 

by  the  State 53,  54 

9.  It  does  not  affect  the  private  character  of  a  corporation  that  the  State 

or  the  United  States  own  a  portion  of  the  stock        .         .         .        55,  56 

SECTION   II. 

HOW  CORPORATIONS  ARE  CREATED. 

1.  Corporations  created  by  grant  of  the  sovereignty.      This  may  be 

proved  by  implication  or  by  presumption      .....  56,  57 

2.  The  sovereignty  may  establish  corporations  by  general  act,  or  by 

delegation  or  procuration        .         .         .         .         .         .         .         .57 

3.  Different  forms  of  defining  a  corporation  .         .         .         .         .         .         57 

4.  The  corporate  action  of  corporations  restricted  to  State  creating  them  57,  58 

5.  It  may  act  by  its  directors  and  agents  in  other  States    .         .         .       58,' 59 
n.  10.  But  cannot  properly  transfer  its  entire  business  to  another  place         58 

6.  A  college  located  at  one  place  cannot  establish  a  branch  at  another  59 

SECTION    III. 

THE    CONSTITUTION   OF   CORPORATIONS. 


1.  Definitions  of  the  different  sense  of  the  term  constitution,  as  applied 

to  corporations 

2.  How  corporations  may  be  composed  or  constituted 

n.  1.  The  question  illustrated  more  in  detail  .         .         .         .         .         .< 

3.  Distinction  of  legislative,  electoral,  and  administrative  assemblies  not 

essential       ........... 

4.  Corporation  can  only  act  by  its  name.     Subject  discussed    . 

5.  Any  deviation  from  the  name  allowed,  if  the  substance  and  sense  be 

preserved     .         .         .         .         .         .         .         .         ... 

6.  Courts  of  equity  will  not  restrain  corporations  from   applying    for 

enlarged  powers       ......... 

7.  Change  of  constitution.     Effect  of  change  of  name   .         .         .         . 

8.  Courts  of  equity  will  enjoin  a  new  corporation  from  assuming  the 

name  of  one  of  established  credit 


59 

.     60 
60 

60 
.     60 

61 

61,  62 
62 

.     62 


CHAPTER  IV. 

PROCEEDINGS    UNDER   THE    CHARTER. 

SECTION   I. 


ORGANIZATION    OF    THE    COMPANY 

1.  Conditions  precedent  must  be  performed  . 

2.  Stock  must  all  be  subscribed,  ordinarily 

3.  Charter,  location  of  road,  condition  precedent 

4.  Colorable  subscriptions  binding  at  law  . 

5.  Conditions  subsequent,  how  enforced 

6.  Stock  distributed  according  to  charter  . 

7.  Commissioners  must  all  act 

8.  Defect  of  organization  must  be  plead   . 

9.  Question  cannot  be  raised  collaterally 

10.  Records  of  company,  evidence 

11.  Membership  how  maintained     . 

12.  By  subscription  and  transfer  of  shares  . 

13.  Offers  to  take  shares  not  enforced  in  equity  maybe  withdrawn 


63 

.  64 

64 
64,  65 

65 
.  65 

65 
.  66 

66 
.  67 

68 
.  68 

68 


ANALYSIS   OF   THE   CONTENTS.  Xlli 

SECTION  II. 

ACCEPTANCE    OF    CHARTER,    OR   OF    MODIFICATION    OF    IT. 

1.  New  or  altered  charter  must  be  formally  accepted         .         .         .  .69 

2.  Subscription  for  stock  sometimes  sufficient         .         .         .         .         .  6[» 

3.  Inoperative  unless  done  as  required      .         .         .         .         .         .  .69 

4.  Assent  to  beneficial  grant  presumed 69 

5.  Matter  of  presumption  and  inference 70 

6.  Organization  or  acceptance  of  charter  may  be  shown  by  parol  .         .  70 

7.  Corporators  assenting  are  bound            .         .         .         .         .         .  .70 

8.  Charter  subject  to  recall  until  accepted     .         .         .  •              .         .  70 

SECTION  III. 

ORDINARY    POWERS. CONTROL    OF    MAJORITY. 

1.  Ordinary  franchises  of  railways 71 

3.  Majority  control,  unless  restrained    .......  71,  72 

4.  Cannot  change  organic  law  .         .         .         .         .         .         .         .         .72 

5.  Except  in  the  prescribed  mode  .         .         .         .         .         .         .         72 

6.  Cannot  accept  amended  charter .        72,  73 

7.  Or  dissolve  corporation     .         .         .         .         .         .         .         .         .         73 

8.  May  obtain  enlarged  powers  ........     73 

9.  Courts  of  equity  will  not  restrain  the  use  of  their  funds  for  that  purpose    74 

10.  But  will,  if  to  convert  canal  into  railway 74 

11.  Right  to  interfere  lost  by  acquiescence 74 

12.  Acquiescence  of  one  plaintiff,  fatal 74,  75 

13.  Railway  a  public  trust 75 

14.  Suit  maintained  by  rival  interest  ......        75,  76 

15.  Court  will  not  generally  interfere  in  behalf  of  minority  to  prevent 

affairs  of  company  being  wound  up 76 

SECTION  IV. 

MEETINGS    OF    COMPANY. 

1.  Meetings  special  and  general        .         . , 77 

2.  Special,  must  be  notified  as  required  .         .         .         .         .         .         7  7 

3.  Special  and  important  matters,  named  in  notice   .         .         .         .        77,  78 

4.  Notice  of  general  meetings  need  not  name  business 78 

5.  Adjourned  meeting,  still  the  same 78,  79 

6.  Company  acts  by  meetings,  by  directors,  by  agents  .         .         .         .         79 

7.  Courts  presume  meetings  held  at  proper  place       .....     79 

8.  Every  stockholder  may  vote,  but  not  by  proxy  .         .         .         .         79 

SECTION  V. 

ELECTION    OF   DIRECTORS. 

1.  Should  be  at  general  meeting,  or  upon  special  notice    .         .         .         .80 

2.  Shareholders  may  restrain  their  authority         .....  80,  81 

3.  Company  bound  by  act  of  directors,  de  facto         .         .         .         .         .81 

4.  Act  of  officer  de  facto  binds  third  persons 82 

SECTION  VI. 

MEETINGS    OF    DIRECTORS. 

1.  All  should  be  notified  to  attend 82 


XIV  ANALYSIS   OF  THE   CONTENTS. 

2.  Adjourned  meeting  still  the  same 83 

3.  Board  not  required  to  be  kept  full 83 

4.  Usurpations  tried  by  shareholders  or  courts 83 

5.  Usage  often  will  excuse  irregularities  ......       83,  84 

6.  Decisions  of  majority  valid         ........  84 

n.  8.  Records  of  proceedings  evidence      .         .         .         .                         84,  85 

7.  A  quorum  must  be  present  where  the  authority  of  a  quorum  is  neces- 

sary        85 

SECTION  VII. 

QUALIFICATION   OF   DIRECTORS. 

1.  One  cannot  be  a  contractor  and  director 85 

2.  May  be  their  banker  and  director 86 

3.  May  be  director  by  virtue  of  stock  mortgaged 86 

4.  Bankruptcy  or  absence  will  not  vacate  office 86 

5.  Company  compelled  to  fill  vacancies  in  board 86 


CHAPTER  V. 

PREROGATIVE   FRANCHISES. 

1.  Control  of  internal  communication,  in  a  state,  a  prerogative  franchise         87 

2.  Such  a  grant  confers  powers  pertaining  exclusively  to  sovereignty, 

as  taking  tolls,  and  the  right  of  eminent  domain  .         .         .         .         87 


CHAPTER  VI. 

BY-LAWS   AND    STATUTES. 

SECTION    I. 
POWER   OF    MAKING   BY-LAWS    OR   STATUTES. 

1.  May  control  conduct  of  passengers 88 

2.  Must  be  reasonable  and  not  against  law 88,  89 

3.  Power  may  be  implied,  where  not  express 89 

4.  Not  required  to  be  in  any  particular  form  unless  by  special  provision  89,  90 
£6.  Model  code  of  by-laws  framed  by  board  of  trade  in  England     .         .         90 

7.  Company  may  demand  higher  fare,  if  paid  in  cars         .         .         .         .91 

8.  Public  statutes  control  by-laws 91,  92 

9.  Cannot  impose  penalty 92 

10.  Cannot  refuse  to  be  responsible  for  baggage 92 

11.  Members  of  corporation  affected  with  notice  of  binding  rules         .         .     93 

SECTION  II. 

BY-LAWS   REGULATING   THE    USE    OF    STATIONS   AND    GROUNDS. 

1.  May  exclude  persons  without  business 93 

2.  May  regulate  the  conduct  of  others 93 


ANALYSIS   OF   THE   CONTENTS.  XV 

3.  Superintendent  may  expel  for  violation  of  rules        .         .         .         .93,94 

4.  Probable  cause  will  justify   .........     94 

5.  In  civil  suit  must  prove  violation  of  rules 94 

6.  In  England  companies  required  to  provide  for  accommodation  of 

passengers 95,  96 

7.  Court  will  not  interfere  to  compel  through  trains,  unless  required 

by  the  public  convenience      .         .         .         •         •         •         .         .96 

8.  Railway  freight-station  not  exempt  from  process  of  search-warrant      96,  97 

SECTION  in. 

BY-LAWS   AS   TO   PASSENGERS. 

1.  By-laws  as  statutes 97 

2.  As  mere  rules,  or  regulations 97,98 

3.  Requiring  larger  fares,  for  shorter  distances    .         .  .         •  98 

4.  Requiring  passengers  to  go  through  in  same  train         .         .         .     99-101 

5.  Arrest  of  passenger,  by  company's  servants 101 

7.  Company  liable  for  act  of  servant 102 

8.  By-law  must  be  published 102,  103 

9.  Excluding  merchandise  from  passenger  trains 103 

10.  Discrimination  between  fares  paid  in  cars,  and  at  stations       .  103,  104 

11.  Liability  for  excess  of  force 105 

12.  Office  de  facto  may  enforce  rules  of  company  ....         105 

13.  Company  cannot  enforce  rule  against  passengers  when  in  fault 

themselves 105 


CHAPTER  VII 

CAPITAL   STOCK. 

« 

SECTION  L 

LIMITATIONS. 

1.  General  rights  of  shareholders 106 

2.  Capital  stock  not  the  limit  of  property 106 

3.  Cannot  mortgage,  unless  on  special  license  of  the  legislature    .        106,  107 

SECTION  II. 

CONDITIONS   PRECEDENT,   WHICH   THE   PUBLIC   AUTHORITIES   MAY   ENFORCE. 

1.  Stock,  if  limited,  must  all  be  subscribed 107 

2.  Payments  at  time  of  subscription 107,108 

SECTION  III. 

SHARES   PERSONAL   ESTATE. 

1.  Railway  shares  personal  estate  at  common  law     .         .         .        .108,109 

2.  Not  an  interest  growing  out  of  land,  or  goods,  wares,  and  merchandise    109 

3.  Early  cases  treated  such  shares  as  real  estate  ....        109,  110 


XVI 


ANALYSIS   OF   THE   CONTENTS. 
CHAPTER  VIII. 


TRANSFER    OF    SHARES. 


SECTION  I. 


RESTRICTIONS    UPON    TRANSFER. 

1.  Express  provisions  of  charter  to  be  observed Ill 

2.  If  not  made  exclusive,  held  directory  merely    .         .         .         .         112,113 

3.  Unusual  and  inconvenient  restrictions  void 113,114 

4.  But  a  lien  upon  stock  for  the  indebtedness  of  the  owner  is  valid       114,  115 

5.  Such  lien  is  not  implied 116 

6.  Where  transfer  is  wrongfully  refused,  vendee  may  recover  value 

of  the  company 117 

SECTION   II. 


CONTRACTS  TO  TRANSFER  STOCK. 

1.  Transfer  under  English  statutes.     Registered  companies 

2.  Contracts  to  transfer  stock  valid,  where  bond  fide   . 

3.  Vendor  must  have  the  stock,  when  due' 
n.  3.  Vendor  must  procure  the  consent  of  directors,  where  requisite 

4.  Force  of  usages  of  stock  exchange       ..... 

5.  Company  will  reform  the  registry  at  its  peril  .... 

6.  10.  Company  may  compel  one  to  accept  shares  on  contract 

7.  Stock  standing  in  joint  names  belongs  to  survivors  . 

8.  Mode  and  effect  of  correcting  registry         .... 

9.  If  the  company  vary  the  contract,  specific  performance  denied 

10.  Closing  contracts  by  offer  and  acceptance   .... 

11.  Form  of  transfer.     Two  may  join  in  one  transfer   . 


.  117, 

118 

118, 

119 

119 

e  . 

118 

.  119, 

120 

. 

120 

.  120, 

121 

120 

.  120, 

121 

121 

121 

121 

SECTION  III. 

INTERVENING    CALLS    OR   ASSESSMENTS. 

1 .  Vendor  must  pay  calls,  if  that  is  requisite  to  pass  title 

2.  Generally  it  is  matter  of  construction,  and  inference 
n.  2.  Calls  paid  by  vendor  after  executing  transfer  . 


.    122 

122 

122,  123 


SECTION   IV. 

TRANSFER  BY  DEED  IN  BLANK. 

1  and  2.  Blank  transfer  formerly  held  invalid  in  England 
3  and  4.  Rule  different  in  America      .... 


123,  121 
124 


SECTION   V. 

SALE    OF    SPURIOUS    SHARES. 

1.  Vendor,  who  acts  bond  fide,  must  refund  money  .         .         .         .125 

3.  No  implied  warranty  in  such  case,  which  will  entitle  the  vendee  to 

special  damage 126 

4.  Rule  of  the  stock-exchange,  made  after  the  sale,  not  binding  upon 

parties .         .126 

n.  1.  Discussion  of  the  extent  of  the  implied  warranty         .         .  125,  126 


ANALYSIS   OF   THE   CONTENTS.  XV11 

SECTION  VI. 

READINESS  TO   PERFORM.  —  CUSTOM    AND   USAGE. 

1.  Vendor  must  be  ready  and  offer  to  convey         .         .         .        .         .127 

2.  Vendee  must  be  ready  to  pay  price         .         .         .         .         .         .         127 

3.  General  custom  and  local  usage.     The  party  taking  the  initiative 

must  prepare  the  writings        .......     127,  130 

n.  3.  Oral  evidence  to  explain  memoranda  of  contract         .         .        127  —  129 

• 

SECTION  VII. 

DAMAGES.  —  SPECIFIC   PERFORMANCE. 

1.  Damages,  difference  between  contract  price  and  price  at  time  of  de- 

livery   130 

2.  Equity  will  decree  specific  performance  of  contract  for  sale  of  shares      131 

SECTION  VIII. 

SPECIFIC   PERFORMANCE. 

1.  Specific  performance  decreed  against  the  vendee    .         .         .         .  132 

2.  This  was  denied  in  the  early  cases 132 

3.  Owner  of  original  shares  may  transfer  them 133 

4.  Will  not  decree  specific  performance  where  not  in  the  power  of  the 

party 133 

SECTION    IX. 

TRUSTEE   ENTITLED   TO   INDEMNITY   AGAINST   FUTURE    CALLS. 

1.  Trustee  entitled  to  indemnity,  on  general  principles        .         .  .         134 

2.  English  courts  hesitated  in  regard  to  railway  shares  .  .  .  .134 
3  and  4.  Cases  reviewed      ........  134,  135 

5.  Mortgagees  liable,  as  stockholders,  for  the  debts  of  the  company  135,  136 

6.  The  ostensible  owner  must  respond  to  all  responsibilities         .  137,  138 

SECTION  X. 

FRAUDULENT  PRACTICES   TO   RAISE   THE   PRICE   OF   SHARES. 

1.  Courts  of  equity  will  vacate  sales  so  procured    .         .         .         .      138,  139 

2.  Necessary  parties 139-141 

3  and  4.  Dividends  declared  when  none  are  earned  will  vacate  sales 

and  subject  directors  to  indictment 141 

5.  Equity  will  not  interfere  where  vendor  acted  bond  fide,  unless  the 

shares  were  valueless  .......  141,  142 

6.  Managers  of  company  liable  in  tort  to  party  injured  .  .  .142 
7  and  n.  10.  Purchasing  shares  in  another  company  considered  142,  143 
8.  Bona  fide  purchaser  acquires  rights     .......     143 

SECTION  XL 

LIABILITY   OF   COMPANY   FOR   NOT   REGISTERING  TRANSFERS. 

1.  The  company  liable  to  action 143,  144 

2.  May  be  compelled  to  record  transfers  by  mandamus   .  144 

3.  But  not  compellable  to  record  mortgages  of  shares          .         .  144,  145 
VOL.  I.                 b 


XV111  ANALYSIS    OF    THE    CONTENTS. 

4.  Grounds  of  denying  mandamus  .......     145 

5.  Bill  in  equity  most  appropriate  remedy  ....  145,  146 

6.  Rule  of  damages 146 

SECTION  XII. 

WHEN    CALLS    BECOME   PERFECTED. 

1.  Calls  are  made  when  the  sum  is  assessed,  notice  may  be  given  after- 
wards .  * 146,  147 

2  and  3.  Directors  the  proper  authority  to  make  calls     .         .         .         .147 
4.  The  manner  of  giving  notice  and  of  proof 148 

section  xni. 

TRANSFER   BY    DEATH,   INSOLVENCY,   OR   MARRIAGE. 

1.  Mandamus  lies  to  compel  the  registry  of  successor      .         .         .      148,149 

2  and  3.  In  case  of  death  personal  representative  liable  to  calls  .         .         149 

4.  Notice  requisite  to  perfect  the  title  of  mortgagee         ....     149 

5.  Stock  in  trust  goes  to  new  trustees 150 

6.  Assignees  of  insolvents  not  liable  for  the  debts  of  the  company  .         .150 

SECTION  XIV. 

LEGATEES   OF    SHARES. 

1.  Entitled  to  election,  interest,  and  new  shares  .         .         .  150,  151 

2.  Shares  owned  at  date  of  will  pass,  although  converted  into  consoli- 

dated stock ....     151 

3.  Consolidated  stock  subsequently  acquired  will  not  pass   .         .         .         151 

SECTION   XV. 

SHARES    IN    TRUST. 

1  and  2.  Company  may  safely  deal  with  registered  owner        .         .      151,  152 
3.  But  equity  will  protect  the  rights  of  cestuis  que  trust         .         .         .         152 

SECTION  XVI. 

THE   EXTENT  OF   TRANSFER   REQUISITE  TO   EXEMPT   FROM    CLAIM    OF   CREDITORS. 

1.  How  transfer  of  stock  perfected  as  to  creditors  ....  152,  153 

2.  Reasonable  time  allowed  to  record  transfer     .         .         .         .  .         153 

3  and  4.  In  some  of  the  states  no  record  required  ....  153,  154 
n.  3.  Question  further  considered         .         .         .         .         .         .  .         153 


CHAPTER  IX. 

ASSESSMENTS    OR   CALLS.' 

SECTION  I. 

PARTY    LIABLE   FOR    CALLS. 

1.  The  party  upon  the  register  liable  for  calls 155 

2.  Bankrupts  remain  liable  for  calls 155,  156 

3.  Cestuis  que  trust  not  liable  for  calls,  in  law  or  equity  .         .  156 


ANALYSIS   OF   THJE   CONTENTS.  XIX 

4.  Trustee  compelled  to  pay  .for  shares 157 

5.  One  on  registry  may  show  his  name  improperly  placed  there       .         .157 

SECTION  II. 

COLORABLE   SUBSCRIPTIONS. 

1.  Colorable  subscriptions  valid    .......  157,  158 

2.  Directors  may  be  compelled  to  register  them       .         .         .         .      158,  159 

3.  Oral  evidence  to  vary  the  written  subscription  inadmissible    .  159,  160 

4.  Register  evidence,  although  not  made  in  the  time  prescribed      .         .160 

5.  Confidential  subscriptions  void 160 

SECTION  III. 

MODE   OF   ENFORCING   PAYMENT. 

1.  Subscription  to  indefinite  stock  raises  no  implied  promise  to  pay  the 

amount  assessed      .         .         .         .         .         .         .         .         .161,162 

2.  If  shares  are  definite,  subscription  implies  a  promise  to  pay  assess- 

ments.    Right  of  forfeiture  a  cumulative  remedy        .         .  162,  16 

3.  Whether    issuing    new  stock   will   bar   a  suit  against    subscriber, 

quctre 164,.  165 

4.  It  would  seem  not 165 

5.  But  the  requirements  of  the  charter  and  general  laws  of  the  state 

must  be  strictly  pursued  in  declaring  forfeiture  of  stock  .         .166 

6.  Notice  of  sale  must  name  place 166,  167 

7.  Validity  of  calls  not  affected  by  misconduct  of  directors  in  other 

matters .         •         -,.         .167 

8.  Proceedings  must  be  regular  at  date       .         .         .         .  .         167 

9.  Acquiescence  will  estop  the  party,  often      .         .         .         ..        ..        .167 

10.  Forfeiture  of  shares         .         .         .         .         .         .  .         .         .         167 

11.  Irregular  calls  must  be  declared  void  before  others  can  be  made  to 

supply  the  place ,         .      167,  168 

SECTION  IV. 

CREDITORS   MAY   COMPEL  PAYMENT  OF   SUBSCRIPTION.-,. 

1.  Company  compelled  to  collect  of  subscribers  by  mandamus     .         .         168 

2,  3,  and  4.  Amount  due  from  subscribers  a  trust  fund  for  the  benefit  of 

creditors         .         .         . 168,  169 

5.  If  a  state  own  the  stock  it  will  be  the  same     .         .         .         .         .         169 

6  and  7.  A  diversion  of  the  funds  from  creditors  is  a  violation  of  con- 
tract on  the  part  of  the  company,  and  a  state  law  authorizing  it 
invalid   .         .         .         .         .         .         .         .         .         .         ..         .169 

8  and  9.  The  general  doctrine  above  stated  found  in  many  American    ■ 

cases .         ..        ..        169 

10.  Judgment  creditors  may  bring  bill  in  equity        .         .        >>  .170 

11.  Promoters  of  railways  liable,  as  partners,  for  expenses  of  procuring 

charter       .         .         ..        .        .         .         .         .  .  »170 

SECTION   V. 

CONDITIONS   PRECEDENT  TO   MAKING    CAT. I ..- 

1.  Conditions  precedent  must  be  performed  before  calls  .         .         .171 

2.  But  collateral  or  subsequent  conditions  not     .         .     '    .         .         171-175 


XX  ANALYSIS   OF   THE   CONTENTS. 

3.  Definite  capital  must  all  be  subscribed  before  calls      .         .         .  175,  176 

4.  It  is  the  same  where  defined  by  the  company  as  in  the  charter  .         1 76 

5.  Conditional  subscriptions  not  to  be  reckoned        ....  176,177 

6.  Legislature  cannot  repeal  conditions  precedent         .         .         .  177,178 

7.  Limit  of  assessments  cannot  be  exceeded  for  any  purpose    .         .  1 78 

8.  Where  charter  fails  to  limit  stock,  corporation  may          .         .  .         178 

9.  Alteration  in  charter  reducing  amount  of  stock  .         .         .         .  .178 

SECTION   VI. 

CALLS   MAY    BE   MADE   PAYABLE   BY    INSTALMENTS.  .  179 

SECTION     VII. 
PARTY   LIABLE   FOR   CALLS. 

1.  Subscribers  liable  to  calls 180 

2  and  6.  What  constitutes  subscription  to  a  capital  stock  .         .     180,  182 

3.  How  a  purchaser  of  stock  becomes  liable  to  the  company         .         180,181 

4.  One  may  so  conduct  as  to  estop  him  from  denying  his  liability    .         .181 

5.  The  register  of  the  company  evidence  of  membership       .         .         181,182 

6.  Subscriptions  must  be  made  in  conformity  to  charter  .         .         .         .182 

7.  Transferee  liable  for  calls.     Subscriber  also  in  same  cases        .         .         182 

8.  Original  books  of  subscription  primary  evidence  ....     182 

9.  If  lost,  secondary  evidence  admissible      ......         183 

10.  What  acts  will  constitute  one  a  shareholder 183 

11.  May  take  and  negotiate  or  enforce  notes  for  subscriptions        .         .         183 

12.  But  note  fraudulently  obtained  not  enforceable 183 

SECTION   VIII. 

RELEASE   FROM   LIABILITY    FOR   CALLS. 

1  and  2.  Where  the  transfer  of  shares,  without  registry,  will  relieve  the 

proprietor  from  calls   ........  183,184 

3.  Where  shares  are  forfeited  by  express  condition,  subscriber  no  longer 

liable  for  calls  . 184,  185 

4.  Dues  cannot  be  enforced  which  accrue  upon  shares  after  they  were 

agreed  to  be  cancelled        . 185 

SECTION  IX. 

DEFENCES  TO   ACTIONS    FOR   CALLS. 

1.  Informality  in  organization  of  company  insufficient      .         .         .     185,186 

2.  Slight  acquiescence  estops  the  party  in  some  cases  .         .         .         .         186 

3  and  4.  Default  in  first  payment  insufficient  .....     187,  188 

5.  Company  and  subscriber  may  waive  that  condition          .  .         188,  189 

6.  Contract  for  stock,  to  be  paid  in  other  stock  .  .  .  .  .190 
7  and  8.  Infancy.  Statute  of  limitations  and  bankruptcy  .  .  190-192 
9.  One  commissioner  can  give  no  valid  assurance  to  the  route  .         .192 

10.  What  representations  matters  of  opinion 192 

SECTION   X. 

FUNDAMENTAL  ALTERATION   OF   CHARTER. 

1.  Will  release  the  subscribers  to  stock    .         .         .         .         .         .         .193 

2.  Railway  company  cannot  purchase  steamboats         .         .         .  193,194 


ANALYSIS   OF   THE   CONTENTS.  XXI 

3,  7.  Majority  may  bind  company  to  alterations,  not  fundamental   194-197,199 

4.  Directors  cannot  use  the  funds  for  purposes  foreign  to  the  organiza- 

tion      .197 

5,  9.  But  where  the  legislature  or  the  directors  make  legal  alterations 

n  the  charter,  or  the  location  of  the  road,  it  will  not  release  sub- 
scribers   197,198,200 

6.  But  if  subscriptions  are  made  upon  condition  of  a  particular  location, 

it  must  be  complied  with 198,199 

8,  9.  Consideration  of  subscription,  being  location  of  road,  must  be  sub- 
stantially performed        .         . 199,  200 

10.  Express  conditions  must  be  performed     ......         200 

11.  How  far  alterations  may  be  made  without  releasing  subscribers        201,  202 

12.  It  may  be  done  where  such  power  is  reserved  in  the  charter       .         .     202 

13.  Personal  representative  liable  to  same  extent  as  subscriber      .         .         202 

14.  Money  subscriptions  not  released  by  subsequent  ones  in  land      .         .     202 

15.  Corporation  cannot  emigrate  into  another  state,  even  by  legislative 

permission 202 

SECTION  XI. 

SUBSCRIPTIONS   BEFORE   DATE   OF   CHARTER. 

1.  Subscriptions  before  date  of  charter  good 203 

2.  Subscriptions  upon  condition  not  performed    ....         203  -  205 
n.  4.  Where  the  condition  is  performed 204,  205 

3.  Subscription  by  a  stranger  to  induce  company  to  build  station         .         205 

4.  Subscription  on  condition,  an  offer  merely 205 

5.  Conditional  subscription  takes  effect  upon  performance  of  the  condi- 

tion             .         .         ...         .         206 

6.  How  far  commissioners  may  annex  conditions  to  subscription       .         .     206 

7.  Such  conditions  void,  if  fraudulent  as  to  company  ....         206 

SECTION    XII. 

SUBSCRIPTION  UPON   SPECIAL  TERMS. 

1.  Subscriptions  not  payable  in  money   . 207 

2.  Subscriptions  at  a  discount,  not  binding 207 

n.  2.   Contracts  to  release  subscriptions  not  binding          .         .         •      207,208 

3.  Subscriptions  after  organization 208,  209 

4.  President  may  accept  conditional  subscriptions 209 

5.  Recent  case  in  Alabama 209 

6.  True  rule  to  be  deduced  from  all  the  cases 209 

7.  Important  case  on  par  values  .......         210 

8.  Difficulty  of  maintaining  them    ...  ....     210 

9.  Sad  effects  of  opposite  course  on  commercial  fair  dealing  .          210,211 

10.  Can  a  corporation  stipulate  to  pay  interest  on  stocks  .         .         .         .211 

11.  Such  a  certificate  of  stock  is  not  thereby  rendered  inoperative  for 

legitimate  purposes 211, 212 

SECTION  XIII. 

EQUITABLE  RELIEF  FROM  SUBSCRIPTIONS  OBTAINED  BY  FRAUD. 

1.  Substantial  misrepresentations  in  obtaining  subscriptions  will  avoid 

them 212 

2.  But  for  circumstantial  misconduct  of  the  directors,  in  the  matter,  they 

alone  are  liable 213 

3.  Directors  cannot  make  profit  for  themselves 213 


XXII  ANALYSIS   OF   TOE   CONTENTS. 

SECTION  XIV. 

FORFEITURE   OF    SHARES.  —  RELIEF  IN    EQUITY. 

1.  Requirements  of  charter  and  statutes  must  be  strictly  pursued         .  214 

2.  If  not,  equity  will  set  aside  the  forfeiture     ......  214 

3.  Must  credit  the  stock  at  full  market  value 214 

4.  Provisions  of  English  statutes      ........  215 

5.  Evidence  must  be  express,  that  all  requisite  steps  were  pursued       .  215 

SECTION    XV. 

SIGHT   OF'   CORPORATORS   AND   OTHERS  TO  INSPECT  BOOKS   OF  COMPANY. 

1.  May  inspect  and  take  minutes  from  books 215 

2.  Discussion  of  the  extent  to  which  such  books  are  evidence  .          215,216 

3.  For  what  purposes  such  books  are  important  as  evidence     .  .         .216 

4.  This  will  not  embrace  the  books  of  proceedings  of  directors  .          216,  217 

5.  Party  claiming  to  be  shareholder  may  inspect  register          .  .         .     21  7 

6.  Allowed  when  suit  or  proceedings  pending      .         .         .      ■  .         .         217 

7.  Party  may  have  aid  in  the  inspection           .         .         .         .  .         .217 

CHAPTER  X. 

RIGHT   OF   WAY   BY   GRANT. 
SECTION   I. 

OBTAINING   LANDS   BY    EXPRESS   CONSENT. 

1.  Leave,  granted  by  English  statute 218 

2.  Persons  under  disability  .         .         .         .         .         .         .         .         218 

218,  219 

219 
.  219 

219 
.  220 

220. 221 
.  221 

221. 222 
.  222 

222 


3.  and  n.  2.  Money  to  take  the  place  of  the  land 

4.  Consent  to  pass  railway  ..... 

5.  Duty  of  railway  in  all  cases         .... 

6.  License  to  build  railway.     Extent  of  duration 

7.  Company  bound  by  conditions  in  deed 

8.  Parol  license  good  till  revoked 

9.  Sale  of  road  no  abandonment      .... 

10.  Deed  conveys  incidents ;  not  explainable 

11.  One  cannot  derogate  from  compulsory  grant 

1 2.  But  this  does  not  apply  to  accidental  incidents 

13.  Case  in  N.  Y.  Court  of  Appeals  somewhat  at  variance  with  the  pre- 

ceding cases       ...........     222 

14.  A  municipal  corporation  may  be  bound  by  implied  contract  in  the 

grant  of  land,  so  as  not  to  be  at  liberty  to  recede  from  it    .  222,  223 

SECTION  II. 

SPECIFIC  PERFORMANCE   IN   EQUITY. 

1.  Contracts  before  and  after  date  of  charter 224 

2.  Contracts  where  all  the  terms  not  defined        .         .         .         .         .         224 

3.  Contracts  for  land,  umpire  to  fix  price         .....      224,  225 

4.  Where  mandamus  also  lies      .         .         .         .         .         .         .  225 

■   5.  Contracts  not  signed  by  company        .......     225 

6.  Where  terms  are  uncertain     ........         225 

•7.  Contracts  giving  the  company  an  option      .         .         .  .      225, 226 

8.  Contracts  not  understood  by  both  parties 226 


ANALYSIS   OF   THE   CONTENTS. 


XX111 


9.  Order  in  regard  to  construction  of  highways  may  be  enforced  at  the 

suit  of  the  municipality 226  -  228 

10.  The  courts  sometimes  decline  to  decree  specific  performance  on  the 

ground  of  public  convenience         .         .         •         •         •         •         .     2*8 

11.  No  decree  of  specific  performance  when  contract  vague  and  un- 

certain        228 


CHAPTER  XL 

EMINENT    DOMAIN. 


SECTION    I. 


GENERAL  PRINCIPLES. 


1.  Definition  of  the  right 

2.  Intercommunication         ...••• 

3.  Necessary  attribute  of  sovereignty 

4.  Antiquity  of  its  recognition 

5.  Limitations  upon  its  exercise       .... 

6.  Resides  principally  in  the  states      .... 

7.  Duty  of  making  compensation     .... 

8.  Navigable  waters • 

9.  10,  and  11.     Its  exercise  in  rivers,  above  tide- water 


.  229 
229 

.  230 
230, 231 

.  231 
231 

.  231 
232 

.     232 


SECTION  II. 


TAKING   LANDS   IN    INVITUM. 


1.  Legislative  grant  requisite 

2.  Compensation-  must  be  made 

3.  Consequential  damages   . 

4.  Extent  of  each  liability 

5.  These  grants  strictly  construed 

6.  Limitation  of  the  power  to  take  lands 

7.  Interference  of  courts  of  equity 

8.  Rule  of  construction  in  American  courts 

9.  Strict,  but  reasonable  construction  . 

10.  Rights  acquired  by  company 

11.  Limited  by  the  grant       . 

xl  2.  Late  decision  of  House  of  Lords 


233 
.     234 

234 
.     234 

234. 235 

235. 236 
236 

.  237 
237 

.     238 

238 

238,  239 


SECTION   III. 


CONDITIONS   PRECEDENT. 

1.  Conditions  precedent  must  be  complied  with ,     23^ 

2.  That  must  be  alleged  in  petition 239>  24^ 

3.  When  title  vests  in  company •         24^ 

4.  Filing  the  location  in  the  land  office  is  notice  to  subsequent  purchasers   240 

5.  After  damages  are  assessed  and  confirmed  by  the  court  the  owner 

is  entitled  to  execution 240'  of  i 

6.  If  the  company  use  the  land    ....-•••         241 

7.  Subscriptions  payable  in  land  without  compensation,  a  court  of 

equity  will  enforce  payment 


241 


XXIV 


ANALYSIS   OF   THE   CONTENTS. 


SECTION  IV. 

PRELIMINARY    SURVEYS. 

1.  May  be  made  without  compensation 241 

2.  Company  not  trespasser      .         .         .         .         .         .         .         .         .242 

3.  For  what  purposes  company  may  enter  upon  lands  .         .         .         242 

4.  Company  liable  for  materials 242,  243 

5.  Right  to  take  materials 243 

6  and  7.  Location  of  survey 243,244* 

SECTION   V. 

POWER  TO  TAKE  TEMPORARY   POSSESSION   OF   PUBLIC   AND   PRIVATE   WAYS.        244 

SECTION  VI. 


LAND   FOR   ORDINARY   AND    EXTRAORDINARY    USES. 


1.  By  English  statute  may  take  land  for  all  necessary  uses 

2.  Companies  have  the  same  power  here 

3.  So  also  of  companies  connecting  at  state  lines     . 


244  -  246 

246 

246,  247 


SECTION    VII. 


TITLE  ACQUIRED    BY    COMPANY. 

1.  Company  have  only  right  of  way     . 

2.  Can  take  nothing  from  soil  except  for  construction 

3.  Deed  in  fee-simple  to  company 

4.  For  what  uses  may  take  land 

5.  Right  to  cross  railway,  extent  of     . 

6.  Conflicting  rights  in  different  companies     . 

7.  8.  Rule  in  the  American  states 
9.  Right  to  use  streets  of  a  city 

10.  Law  not  the  same  in  all  the  states  . 

11.  Rule  in  Massachusetts        .... 

12.  13.  Land  reverts  to  the  owner 

14.  True  rule  stated  .... 

15.  Conditions  must  be  performed 

16.  Further  assurance  of  title    . 

1 7.  Condemnation  cannot  be  impeached 

18.  Where  public  acquire  fee,  it  will  never  revert  to  grantor 


247 

247,  248 
248,249 

249,  250 
250 

.     250 

250,  251 
.     252 

252 

.     253 

253,254 

.     254 

254 

.     254 

254, 255 

.     255 


SECTION   VIII. 


CORPORATE   FRANCHISES    CONDEMNED. 

1.  Road  franchise  may  be  taken. 

2.  Compensation  must  be  made 

3.  Railway  franchise  may  be  taken 

4.  Rule  denned       .... 

5.  Constitutional  restrictions 

6.  Not  well  denned 

7.  Must  be  exclusive,  in  terms     . 

8.  Legislative  discretion 

9.  Highways  and  railways  compared 

10.  Extent  of  eminent  domain  .... 

11.  Exclusiveness  of  the  grant,  a  subordinate  franchise 


255, 256 

.     256 

256 

256,257 

257 

.     257 

257,258 

.     258 

258 

.     258 

259 


12.  Legislature  cannot  create  a  franchise,  above  the  reach  of  eminent 

domain 259 

13.  Legislature  may  apply  streets  in  city  to  any  public  use    .         .       260  -  262 


ANALYSIS   OF   THE   CONTENTS. 


XXY 


SECTION   IX. 


COMPENSATION.  —  MODE   OF   ESTIMATING. 

1.  General  inquiry  simple        ........  262 

2.  Remote  damage  and  benefits  not  to  be  considered  ....         262 

3.  General  rule  of  estimating  compensation    ....  .      262,263 

4.  Prospective  damages  assessed .         .         .         ...         .         •         .         263 

5.  In  some  states  value  "  in  money  "  is  required     .....     264 
6  and  7.  Damage  and  benefits  cannot  be  considered  in  such  cases         264,  265 

8.  Rule  of  the  English  statute 266,267 

9.  Farm  accommodations    .         .         .         .         .         .         .         .         .         267 

10.  Benefits  and  damage,  if  required,  must  be  stated         .         .         .      267,268 
n.  13.  Course  of  the  trial  in  estimating  land  damages    .         .         .  268,269 

11.  Items  of  damages  not  indispensable  to  be  stated  .         ....     269 

12.  In  contracts  for  land  statutory  privileges  must  be  stated  to  be  secured     269 

13.  Questions  of  doubt  referred  to  experts     ......         269 

14.  Special  provisions  as  to  crossing  streets  only  permissive       .         .         .     269 

15.  In  an  award  of  farm  accomodations  time  of  the  essence  of  the  award        269 


SECTION   X. 


MODE  OF   PROCEDURE 


1.  Legislature  may  prescribe  .... 

2.  Must  be  upon  proper  notice    . 

3.  Formal  exceptions  waived,  by  appearance  . 

4.  Unless  exception  is  upon  record 

5.  Proper  parties,  those  in  interest . 

6.  Title  may  be  examined  .... 

7.  Plaintiffs  must  show  joint  interest 

8.  Jury  may  find  facts  and  refer  title  to  the  cour 

9.  Land  must  be  described  in  verdict 

10.  Distinct  finding  on  each  claim 

11.  Different  interests       ..... 

12.  What  evidence  competent 

13.  Proof  of  value  of  land  ... 

14.  Opinion  of  witnesses        .... 

15.  Testimony  of  experts  .... 

16.  Matters  incapable  of  description 

17.  Costs 

18.  Expenses 

19.  Commissioners'  fees     . 

20.  Appellant  failing  must  pay  costs 

21.  Competency  of  jurors  . 

22.  Power  of  court  to  revise  proceedings 

23.  Debt  will  not  lie  on  conditional  report 

24.  Excessive  damages,  ground  of  setting  aside  verdict 
Note.     Other  matters  of  practice       ..... 

25.  No  effort  to  agree  required  in  order  to  give  jurisdiction 


.     270 

270,271 

.     271 

271 

.     271 

271,272 

.     272 

272 
.     272 

273 
.     273 

273 

273. 274 

274. 275 
.     275 

276 
277,278 

278 
.     278 

278 
.     278 

279 
.     279 

279 
279,  280 

280 


SECTION  XI. 

THE  TIME   COMPENSATION  TO   BE   MADE. 

1.  Opinions  conflicting 281 

2.  Chancellor  Kent's  definition 281 

3.  That  of  the  Code  Napoleon 281,282 

4.  Most  state  constitutions  require  it  to  be  concurrent  with  the  taking  .  282 


XXVI  ANALYSIS    OF   THE    CONTENTS. 

5.  English  cases  do  not  require  this 283,  284 

6.  Adequate  legal  remedy  sufficient 284,  285 

7.  Where  required,  payment  is  requisite  to  vest  the  title          .         .  285,  286 

8.  Some  states  hold  that  no  compensation  is  requisite           .         .  .         286 

SECTION  XII. 

APPRAISAL  INCLUDES   CONSEQUENTIAL   DAMAGES. 

1.  Consequential  damage  barred     ........     287 

2.  Such  as  damage,  by  blasting  rock 287 

3.  But  not  where  other  land  is  used  unnecessarily  .    '     .         .         .      288,  289 

4.  But  loss  by  fires,  obstruction  of  access,  and  cutting  off  springs  is 

barred 289,  290 

5.  Loss  by  flowing  land,  not  barred     .......  290 

6.  Damages,  from  not  building  upon  the  plan  contemplated,  are 

barred 290,  291 

7.  Special  statutory  remedies  reach  such  damages  .....     291 

8.  Exposure  of  land  to  fires 291,  292 

9.  No  action  lies  for  damages  sustained  by  the  use  of  a  railway         .         .     293 

SECTION  XIII. 

ACTION   FOR   CONSEQUENTIAL   DAMAGES. 

1.  Statute  remedy  for  lands  "  injuriously  affected"  .         ....     294 

2.  Without  statute  not  liable  to  action 294 

3.  Are  liable  for  negligence  in  construction  or  use  .         .         .      295,  296 

4.  Statute  remedy  exclusive 296 

5.  Minerals  reserved        .         .         .         .         .         .         .         .         •         .297 

6.  Damages  for  taking  land  of  railway  for  highway     .         .         .         .  297 

7.  Compensation  for  minerals,  when  recoverable     .         .         .         .         .297 

SECTION  XIV. 

RIGHT   TO   OCCUPY   HIGHWAY. 

1.  Decisions  conflicting 298 

2.  First,  held  that  owners  of  the  fee  were  entitled  to  additional 

damages     ......*....  299 

3.  Principle  seems  to  require  this 300  -  302 

4.  Many  cases  take  a  different  view  ......         303  -  306 

5.  Legislatures  may  and  should  require  such  additional  compensation      306,  307 

6.  Courts  of  equity  will  not  enjoin  railways  from  occupying  streets 

of  a  city  .         .         . 307 

7.  Some  of  the  states  require  such  compensation  .         .         .  308,309 
n.  11.     All  do  not.     But  the  English  courts,  principle,  and  many 

of  the  state  courts,  do  require  it,  as  matter  of  right         .         .    309  -  311 

8.  Recent  decision  upon  the  right  to  occupy  the  highway    .         •        310  -  315 

1.  The  decisions  in  the  state  of  New  York  require  compensation 

to  the  owner  of  the  fee        .......  311,312 

2.  Distinction  between  streets  of  cities  and  highways  in  the  country  .         312 

3.  Legislature  may  control  existing  railways         .         .         .         .  .312 

4.  In  Ohio  the  owner  of  the  fee  may  claim  indemnity  against  ad- 

ditional injury 312,  313 

5.  True  distinction,  whether  the  use  is  the  same       .         .         .         .  313 

6.  The  present  inclination  seems  to  be  to  require  additional  com- 

pensation for  laying  street  railway  in  highway     .         .         .         .313 

7.  Cases  in  the  opposite  direction.      Judge  Ellsworth's  opinion  313,  314 


ANALYSIS  OF  THE  CONTENTS. 


XXV11 


8.  Explanation  of  the  apparent  confusion 314 

9.  Where  permanent  erections  made  in  street,  compensation  must 

be  made 314 

10.  Rights  of  land-owners  as  to  obstructing  railway       .         .         .      314,  315 
11  &  n.  23.  Recent  cases  in  New  York,  property  rights  of  the  com- 
pany       315-317 

1.  The  interest  demands  reasonable  protection 317 

2.  The  legislature  have  power  to  impose  a  permanent  burden 

upon  streets    .........  317,  318 

3.  But  this  is  not  to  be  assumed  as  matter  of  construction  .         .         .318 

4.  Decisions  not  uniform.    Generally  held  that  street  railway  fran- 

chise exists  in  the  easement  for  the  highway.     Analogy  of 

steam  roads     ..........  318 

5.  Street  railways  do  not  increase  the  servitude  of  the  highway       318,  319 

6.  Must  always  be  regarded  and  treated  as  a  portion  of  the  highway     .     319 

7.  The  estate  or  franchise  of  street  railways  exclusive  as   to 

passenger  traffic  .         .         .         .         .         .         .         .         .319 

8.  9.  This  point  further  illustrated 319,320 

10.  How  far  the  legislature  may  effect  the  exclusiveness  of  this 

franchise 320 

11.  Where  compensation  is  required,  no  abridgment  of  right  implied        320 

12.  The  franchise  and  property  must  remain  subject  to  legislative 

and  municipal  control         .......      320,  321 

13.  Some  states  allow  additional  land-damages  for  change  of  grade 

of  the  street 321 

14.  This  not  demandable,  unless  the  change  is  required  for  some- 

thing in  addition  to  highway,  or  unless  given  by  special 

statute 321,322 

15-19.  Summary  of  the  argument  under  this  head  .         .         .         322 

SECTION  XV. 

CONFLICTING   RIGHTS  LN  DIFFERENT   COMPANIES. 

1.  Railway  company  subservient  to  another,  can  only  take  of  the 

other  land  enough  for  its  track       .         .         .         .         .         .         .     323 

2'.  Where  no  apparent  conflict  in  route  first  located  acquires  su- 
perior right         ..........  323 

SECTION  XVI. 

EIGHT   TO   BUILD   OVER   NAVIGABLE   WATERS. 


1.  Legislature  may  grant  the  right  .... 

2.  Riparian  proprietor  owns  only  to  the  water     . 

3.  His  rights  in  the  water  subservient  to  public  use 

4.  Legislative  grant  paramount,  except  the  national  rights 

5.  State  interest  in  flats  where  tide  ebbs  and  flows 

6.  Rights  of  adjoining  owners  in  Massachusetts 

7.  Railway  grant  to  place  of  shipping      .... 

8.  Principal  grant  carries  its  incidents 

9.  Grant  of  a  harbor  includes  necessary  erections  . 
10,  11.  Large  rivers  held  navigable  in  this  country 

12.  Land  being  cut  off  from  wharves  is  "  injuriously  affected" 

13.  Paramount  rights  of  Congress   infringed  creates   a   nuisance 

Party  specially  injured  may  have  action     .... 

14.  Case  in  New  Hampshire     ....... 

15.  Obstruction,  if  illegal,  per  se  a  nuisance  


324 

325 

325 

326 

327- 

-330 

330 

330 

330 

330 

331 

331 

331 

332 

332 

332 

333 

XXV111 


ANALYSIS   OF   THE   CONTENTS. 


SECTION  XVII. 

OltSTRUCTION   OF   STREAMS    BY    COMPANY'S    WORKS. 

Cannot  divort  stream  without  compensation         .... 
Company  liable  for  defective  construction        .... 
So  also  if  they  use  defective  works,  built  by  others     .         .         . 
Company  liable  to  action,  where  mandamus  will  not  lie 
Company  liable  for  defective  works,  done  according  to  their  plans 


G.  When  a  railway  "  cuts  off"  wharves  from  the  navigation 


.  333 
333 

.  333 
334 

.  334 
334,  335 


SECTION  XVIII. 

OBSTRUCTION   OF   PRIVATE   WAYS. 

1.  Obstruction  of  private  way  matter  of  fact,  need  not  be  illegal      .         .     335 

2.  Farm  road  on  one's  own  land  not  private  way         .         .         .  335,  336 

3.  But  railway  may  lawfully  pass  along  public  street        .         .         .  336 

SECTION  XIX. 


STATUTE   REMEDY    EXCLUSIVE. 

1.  Remedy  for  land  taken,  exclusively  under  the  statute  .         .         .     336 

2.  But  if  company  do  not  pursue  statute  are  liable  as  trespassers. 

Liable  for  negligence  also 337,  338 

3.  Courts  of  equity  often  interfere  by  injunction      .....     338 

4.  Important  case  in  the  House  of  Lords     .....  338,  339 

5.  Right  at  law  must  be  first  established 339 

6.  Where  statute  remedy  fails,  common-law  remedy  exists  .         .         .         339 

7.  The  general  rule  adhered  to  in  America    .....       339,  340 

8.  Company  adopting  works  responsible  for  amount  awarded  for 

land  damages 340 


SECTION  XX. 


LANDS    INJURIOUSLY    AFFECTED. 


1.  Obstruction  of  way,  loss  of  custom  ..... 

2.  Equity  will  not  enjoin  legal  right        ..... 

3.  Liable  for  building  railway,  so  as  to  cut  off  wharf   . 

4.  Not  liable  for  crossing  highway  on  level      .... 

5.  English  statute  only  includes  damages  by  construction 

6.  Equity  will  not  enjoin  a  doubtful  claim       .... 

7.  Damages,  unforeseen  at  the  time  of  the  appraisal,  maybe  recov 

ered  in  England         ........ 

8.  Injuries  to  ferry  and  towing-path  compensated  . 

9.  10.   Remote  injuries  not  within  the  statute      .... 

11.  Damages  compensated,  under  statute  of  Massachusetts 

12.  Damages  not  compensated,  as  being  too  remote 

13.  For  negligence  in  construction,  remedy  at  common  law 

14.  Or  neglect  to  repair        ........ 

15.  Recovery  under  the  statute,  &c.  ..... 

16.  Possession  by  railway,  notice  of  extent  of  title 

1 7.  Railways  have  right  to  exclusive  possession  of  roadway 


340, 341 

341,  342 
342 
342 
342 

342,  343 

343 

343,  344 
344 

.  345 
345 
345,  346 
346 
346 
346 

,  347 


ANALYSIS   OF   THE   CONTENTS.  XXIX 

SECTION   XXI. 

DIFFERENT   ESTATES   PROTECTED. 

1.  Tenant's  good-will  and  chance  of  renewal  protected  .         .      347,  348 

2.  Tenants  entitled  to  compensation  for  change  of  location  .         .         348 

3.  Church  property  in  England,  how  estimated       .....     348 

4.  Tenant  not  entitled  to  sue  as  owner  of  private  way         .         .         .         348 

5.  Heir  should  sue  for  compensation 348,  349 

6.  Lessor  and  lessee  both  entitled  to  compensation       .         .         .         .         349 

7.  Right  of  way,  from  necessity,  protected      ......     349 

8.  Mill-owner  entitled  to  action  for  obstructing  water  .         .         .         349 

9.  Occupier  of  land  entitled  to  compensation  ....      349,  350 

10.  Tenant,  without  power  of  alienation,  forfeits  his  estate  by  license  to 

company     ...........         350 

11.  Damages  not  transferable  by  deed  of  land  after  they  accrue       .         .     350 

SECTION  XXII. 

ARBITRATION. 

1.  Attorney,  without  express  power,  may  refer  disputed  claim     .         .         350 

2.  Award  binding  unless  objected  to  in  court 351 

SECTION  XXIII. 

STATUTE   OF   LIMITATIONS. 

1.  General  limitation  of  actions  applies  to  land  claim           .         .  .  351 

2.  Filing  petition  will  not  save  bar 351,  352 

3.  Acquiescence  of  forty  years  by  land-owner,  effect  of  352 

4.  The  estoppel  will  take  effect  if  the  use  is  clearly  adverse    .         .  .352 

CHAPTER  XII. 

REMEDIES   BY   LAND-OWNERS    UNDER   THE    ENGLISH!   STATUTE. 

SECTION    I. 
COMPANY   BOUND   TO   PURCHASE   THE   WHOLE   OF   A  HOUSE,  ETC. 

1.  The  company  to  take  the  accessories  with  the  house        .         .         .         353 

2.  But  the  owner  has  an  election  in  regard  to  that  .         .         .     353,  354 

3.  A  deposit  of  the  appraised  value  means  the  value  of  all  the  company 

are  bound  to  take        .........         354 

4.  Company  bound   to  take   all  of  which  they  take   part,  and  pay 

special  damage  besides •         .         .      354,  355 

5.  Where  the  company  desire  part,  not  compellable  to  take  whole,  un- 

less they  persist  in  taking  part    .......         355 

6.  Land  separated  from  house  by  highway  not  part  of  premises        .      355,  356 

SECTION   II. 

THE  COMPANY  COMPELLABLE  TO  TAKE  INTERSECTED  LANDS,  AND  THE  OWNER  TO  SELL. 

1.  When  less  than  half  an  acre  remains  on  either  side,  company  must 

buy    • 356 

2.  Owner  must  sell,  where  land  of  less  value  than  railroad  crossing     356,  357 
3  and  4.  Word  "  town,"  how  construed 357 


XXX  ANALYSIS  OF  THE  CONTENTS. 

SECTION  III. 

EFFECT  OF  NOTICE  TO  TREAT  FOR  THE  PURCHASE  OF  LAND. 

1.  Important  question  under  statute  of  limitations        ....         357 

2.  Company  compelled  to  summon  jury  .         ......     35  7 

3.  Ejectment  not  maintainable  against  company  ....         358 

4.  Powers  to  purchase  or  enter,  how  saved      .  .  .  .  .      358,  359 

5.  Subsequent  purchasers  affected  by  notice  to  treat  as  the  inception  of 

title        .         .         .         .         .         .         ...         .         .         .359 

6.  But  the  notice  may  be  withdrawn  before  anything  is  done  under  it  359 

7.  Not  indispensable  to  declare  the  use,  or  that  it  is  for  station,  and  an- 

other company  to  participate  in  use 359 

SECTION   IV. 

REQUISITES   OF   THE   NOTICE  TO  TREAT. 

1.  Notice  to  treat  must,  in  terms  or  by  reference,  accurately  describe 

land 360 

2.  After  notice  to  treat  company  compellable  to  purchase.     Company 

cannot  retract  after  giving  notice  to  treat .....         360 

3.  New  notices  given  for  additional  lands         .....      360,  361 

4.  Power  to  take  land  not  lost  by  former  unwarranted  attempt    .         .         361 

5.  Lands  may  be  taken  for  branch  railway      .         .         .         .         •         .361 

6.  Effect  of  notice  in  case  of  a  public  park  ......         3J1 

SECTION   V. 

THE  NOTICE   MAY    BE  WAIVED    BY   THE   PARTY    ENTERING    INTO   THE  NEGOTIATION. 

1.  Notice  must  be  set  forth  in  proceedings 361 

2.  Agreement  to  waive  operates  as  an  estoppel   ....  361,362 

3.  Certiorari  denied  where  party  has  suffered  no  injury  ....     362 

SECTION  VI. 

TITLE   OF   THE    CLAIMANT    MUST   BE   DISTINCTLY    STATED. 

1.  Claimant's  reply  to  notice  should  be  clear  and  accurate  .         .         .         362 

2.  Award  bad  which  does  not  state  claimant's  interest     .         .         .      362,  363 

3.  Where  lands   are  held  by  a  receiver  or  commission  for  a  lunatic. 

Expression  "fee  simple  in  possession  "         .....         363 
n.  3.  Analogous  American  cases      ■         .         .         .         ...         •      363, 364 

SECTION    VII. 

THE   CLAIM    OF   THE   LAND-OWNER  MUST   CORRESPOND   WITH   THE   NOTICE.         364 

CHAPTER  XIII. 

ENTRY    UPON    LANDS   BEFORE    COMPENSATION    IS   ASSESSED. 

SECTION    I. 

LANDS   TAKEN   OR   INJURIOUSLY  AFFECTED  WITHOUT   HAVING   PREVIOUSLY   MADE    COM- 
PENSATION TO   THE   PARTIES. 

1.  No  entry  under  English  statutes  without  previous  compensation,  ex- 
cept for  preliminary  survey >  365 


ANALYSIS    OF    THE    CONTENTS.  XXXI 

2.  Legal  remedies  against  company  offending      .     '    .         .         .         .         365 

3.  What  acts  constitute  taking  possession  under  statute  ....     366 

4.  Company  may  enter  with  land-owner's  consent  after  agreement  for 

arbitration  ..........         366 

5.  Bond  may  be  given  in  certain  cases    ......      366,367 

SECTION  II. 

THE   PROCEEDINGS   REQUISITE   TO   ENABLE   THE    COMPANY   TO    ENTER    (TON   LAND. 

1.  Provisional  valuation  under  English  statutes    .....         368 

2.  Irregularities  in  proceedings        ........     368 

3.  Penalty  for  irregular  entry  upon  lands    .....  368,  369 

4.  Entry  after  verdict  estimating  damages,  but  before  judgment       .         .     369 

5.  Mode  of  assessing  damages  provided  in  charter  not  superseded  by  sub- 

sequent general  railway  act         .         .         .         .         .         .         .         369 

SECTION   III. 

MODE   OF   OBTAINING   COMPENSATION    UNDER  THE   STATUTE    FOR    LANDS    TAKEN    OR    IN- 
JURIOUSLY AFFECTED,    WHERE   NO   COMPENSATION   IS   OFFERED. 

1.  Claimant  may  elect  arbitration  or  jury  trial        .....     369 

2.  Method  of  procedure .  369,370 

SECTION  IV. 

THE  ONUS  OF  CARRYING  FORWARD  PROCEEDINGS. 

1.  Rests  upon  claimant  after  company  have  taken  possession  .         .         .370 

2.  Miscellaneous  provisions  .......  370,371 

3.  Proceedings  cannot  be  had  unless  actual  possession  is  taken,  or  in- 
jury done  ............     371 

SECTION   V. 

EQUITY  WILL  NOT  INTERFERE  BY  INJUNCTION,  BECAUSE  LANDS  ARE   BEING  INJURIOUSLY 
AFFECTED,   WITHOUT   NOTICE  TO  TREAT,   OR   PREVIOUS    COMPENSATION. 

1.  Claimant  must  wait  until  works  are  completed      ....  371,372 

2.  Even  if  appearance  of  land  will  be  greatly  altered  .         .         .  .         372 

3.  How  far  equity  interferes  where  legal  claim  of  party  is  denied    .  .372 

4.  Where  a  special  mode  of  compensation  has  been  agreed  upon  .         372 

SECTION    VI. 

SHERIFF'S    JURY    OR    ARBITRATOR    CANNOT    DETERMINE    THE    QUESTION    OF    RIGHT   IN 
THE   CLAIMANT,    BUT  ONLY  THE  AMOUNT   OF    DAMAGES. 

1.  Later  English  decisions  sustain  this  view 373 

2  and  3.  Statement  of  recent  case 373,374 

4.  In  most  American  states  assessment,  is  final  .         .         .         .         .374 

5.  Plaintiff  will  recover  damages  assessed,  if  he  suffered  any  legal  in- 

jury            ....  374 

SECTION   VII. 

THE    EXTENT    OF    COMPENSATION    TO    LAND-OWNERS,    AND    OTHER    INCIDENTS    BY    THE 

ENGLISH    STATUTES. 

1.  Liberal  compensation  allowed 375 

2.  Decisions  under  English  statutes      .         .         .         .         .         .  375,376 


XXXli  ANALYSIS   OF   THE   CONTENTS. 

3.  Limit  of  period  for  estimating  damages        .         .         .         .         .         .376 

4.  Whether  claim  for  damages  passes  to  the  devisee  or  executor  .         .         376 

5.  Vendor  generally  entitled  to  damages  accruing  during  his  time  .         .376 

SECTION   VIII. 

EIGHT   TO  TEMPORARY   USE   OF  LAND   TO   ENABLE   COMPANY  TO   MAKE   ERECTIONS  UPON 

OTHER   LANDS. 

1.  Right  to  pass  another  railway  by  a  bridge  gives  temporary  use  of 

their  land,  but  no  right  to  build  abutments  upon  it     .         .         .         377 

2.  Ri<dit  to  construct  a  bridge  across  a  canal  gives  right  of  building  a 

temporary  bridge 377 

3.  And  if  thus  erected   bond  fide,  may  be  used  for  other  purposes         .         377 

SECTION   IX. 

RESERVATIONS  TO   LAND-OWNERS  TO   BUILD   PRIVATE   RAILWAY   ACROSS   PUBLIC 

RAILWAY.  378 


CHAPTER  XIV. 

THE   MODE    OF    ASSESSING    COMPENSATION  UNDER   THE    ENGLISH   STATUTES. 

SECTION   I. 

BY   JUSTICES   OF   THE   PEACE. 

1.  Where  compensation  claimed  does  not  exceed  £50     .         .         .         .379 

2.  Mode  of  enforcing  award 379 

3.  Value  of  land  and  injury  accruing  from  severance  to  be  considered         379 

SECTION  II. 

BY   SURVEYORS.  380 

SECTION  III. 

BY   ARBITRATION. 

1.  May  be  claimed  in  cases  exceeding  the  jurisdiction  of  justices  of  the 

peace    ...      ^ .......         .      380, 381 

2.  How  made  compulsory 381 

3.  What  form  of  notice  is  sufficient 381 

n.  5.  Analogous  American  cases  .......  381,  382 

4.  Arbitrator's  power  limited  to  award  of  pecuniary  compensation  .     382 

5.  Where  land-owner  gives  no  notice,  company  may  treat  it  as  case 

of  disputed  compensation     ........         382 

6.  Similar  rule  under  Massachusetts  statute,  regarding  alteration  of  high- 


ways 


382 


7.  And  land-owners  may  recover  without  waiting  for  selectmen  to  act  382 

8.  Company  estopped  in  such  case  from  denying  that  road  was  con- 

structed by  their  servants.     Embankments  part  of  the  railway     382,  383 

9.  Finality  of  award 383 

10.  May  employ  experts.     Damages  embraced 383 

11.  Construction  of  general  award 383 


ANALYSIS   OF   THE   CONTENTS.  XXX1U 

CHAPTER  XV. 

CONSTRUCTION   OF    RAILWAYS. 

SECTION  I. 

LINE  OF   RAILWAY.  —  RIGHT  OF   DEVIATION. 

1.  Manner  of  defining  the  route  in  English  charters         ....     384 

2.  Question  involved  stated 385-387 

3.  Plans  only  binding,  when  and  for  the  purpose  referred  to,  in  the 

act 387,  388 

4.  Contractor  bound  by  deviation,  unless  he  object,      ....         388 

5.  Courts  of  equity  will  not  enforce  contract  against  public  security         .     388 

6.  Right  to  construct  accessory  works  ......  388,  389 

7.  8.  Company  may  take  lands  designated,  in  their  discretion  .     389,  390 
9.  Equity  cannot  enforce  contract,  not  incorporated  into  the  act  .         390 

10.  Right  of  deviation  lost  by  election 390,391 

11.  Railway  between  two  towns,  extent  of  grant 391 

12.  Grant  of  land  for  railway,  includes  accessories     ....     391,392 

13.  Route  designated  need  not  be  followed  literally       ....         392 

14.  Terminus  being  a  town,  is  not  extended,  as  the  town  extends      .         .     392 

15.  Party  accepting  compensation  waives  informality     .         .         .  392,  393 

16.  Powers  limited  in  time  expire  with  limitation      .....     393 

1 7.  Construction  of  charter  as  to  extent  of  route   .....         393 

18.  Map  may  be  made  to  yield  to  other  grounds  of  construction         .        .     393 

19.  Power  to  change  location  must  be  exercised  before  construction       .         394 

20.  Binding  force  of  plans  made  part  of  charter 394 

SECTION  II. 

DISTANCE,   HOW   MEASURED. 

1.  This  is  affected  by  subject-matter    .......         394 

2.  Contracts  to  build  railway,  by  rate  per  mile         ....     394,  395 

3.  General  rule  to  measure  by  straight  line  .....         395 

4.  Same  rule  in  regard  to  turnpike  roads         .         .         .         .         .         .395 

5.  Distance  in  miles  as  determining  fare 395,  396 

SECTION   III. 

MODE    OF   CONSTRUCTION,   TO   BE   DONE   WITH   LEAST   DAMAGE. 

1.  Does  not  extend  to  form  of  the  road,  but  the  mode  of  construction      .     396 

2.  Special  provisions  of  act  not  controlled  by  this  general  one      .         .         396 

3.  Works  interfered  with,  to  be  restored,  for  all  uses       ....     396 

SECTION  IV. 

MODE   OF    CROSSING   HIGHWAYS. 

1.  English  statutes  require  it  should  not  be  at  grade     .         .         .         .         397 

2.  Or  if  so,  that  gates  should  be  erected  and  tended        .         .         .         .397 

3.  And  if  near  a  station,  railway  train  not  to  exceed  four  miles  an 

hour 397,398 

4.  Cannot  alter  course  of  highway 398 

5.  Term  "  highway  "  does  not  include  military  roads    ....         398 

6.  Mandamus  does  not  lie  where  company  have  an  election    .        .     398,  399 
vol;  i.  c 


XXXIV  ANALYSIS   OF   THE   CONTENTS. 

7.  Railway  cannot  alter  highway  to  avoid  building  bridge  .         .         .         399 

8.  Extent  of  repair  of  bridge  over  railway       ......     399 

9.  Permission  to  connect  branches  with  main  line  not  revocable  .         .         399 

10.  Grant  to  build  railways  across  main  line  implies  right  to  use  them 

as  common  carriers  ........     399,  400 

11.  Railway  responsible  for  injury  by  falling  into  culvert  when  covered 

by  snow      ...........         400 

12.  The  right  to  lay  line  across  railway  carries  right  to  lay  as  many 

tracks  as  are  convenient  for  the  business 400 

13.  Damages  for  laying  highway  across  railway      .....         400 

14.  Laying  highway  across  railway  at  grade.     Company  not  estopped  by 

contract  with  former  owner  of  land 400 

SECTION  V. 

EIGHTS   OF   TELEGRAPH   COMPANIES. 

1.  Right  to  "pass  directly  across  a  railway,"  does  not  justify  boring 

under  it      ........         .         .  401 

2.  Exposition  of  the  terms  "  under  "  and  "  across  " 401 

3.  Erecting  posts  in  highway  a  nuisance,  even  if  sufficient  space  remain      401 
n.  4.  Opinion  of  Crompton,  J 401  -  403 

SECTION  VI. 

DUTY   IN   REGARD   TO   SUBSTITUTED   WORKS. 

1.  Bound  to  repair  bridge,  substituted  for  ford,  or  to  carry  highway  over 

railway  ............     404 

2.  The  same  rule  has  been  applied  to  drains,  substituted  for  others      .        404 

3.  The  extent  of  this  duty,  as  applied  to  bridge  and  approaches      .         .     404 

SECTION  VII. 

CONSTRUCTION  OF  CHARTER  IN  REGARD  TO  NATURE  OF  WORKS,  AND  MODE 

OF  CONSTRUCTION.  405 

SECTION  vin. 

TERMS   OF   CONTRACT.  —  MONEY  PENALTIES.  —  EXCUSE   FOR   NON-PERFORMANCE. 

1.  Contracts  for  construction  assume  unusual  forms      ....        406 

2.  Estimates  made  by  engineer       ........     406 

3.  Money  penalties,  liquidated  damages.     Full  performance        .        406-408 

4.  Excuses  for  non-performance      ........     408 

5.  Penalty  not  incurred,  unless  upon  strictest  construction  .         .         .         408 

6.  7.  Contractor  not  entitled  to  anything  for  part-performance         .      408,  409 
n.  2.  Proper  construction  of  the  terms  used  in  these  contracts        .  407,408 

8.  Contract  for  additional  compensation  must  be  strictly  performed     .         409 

SECTION  IX. 

FORM  OF  EXECUTION.  —  EXTRA  WORK.  —  DEVIATIONS. 

1.  No  particular  form  of  contract  requisite  generally        .         .         .      409,410 

2.  But  the  express  requirements  of  the  charter  must  be  complied  with  410 

3.  Extra  work  cannot  be  recovered  of  the  company,  unless  done  upon 

the  terms  specified  in  contract       .  .         .         .         .         .411,412 

4.  If  the  company  have  the  benefit  of  work,  are  liable         .         .         .         412 


ANALYSIS   OF   THE   CONTENTS.  XXXV 


SECTION  X. 

IF  ONE  PARTY    REPUDIATE  THE   CONTRACT,   THE   OTHER  MAY    SUE   PRESENTLY.  — 
INEVITABLE    ACCIDENT. 

1 .  Party  repudiating  excuses  the  other 4  ^ 

2.  New  contract  valid 41^ 

3.  President  cannot  bind  the  company    ....•••  ^13 

4.  Effect  of  inevitable  accident   .  41<* 

SECTION  XI. 

DECISIONS  OF  REFEREES  AND   ARBITRATORS  IN   REGARD   TO   CONSTRUCTION 
CONTRACTS. 

1.  Award  valid  if  substantially  correct 414 

2.  Court  will  not  set  aside  award,  where  it  does  substantial  justice        414,  415 

SECTION  XII. 

DECISIONS  OF   COMPANY'S   ENGINEERS. 

1.  Estimates  for  advances,  mere  approximations,  under  English  practice     415 

2.  But  where  the  engineer's  estimates  are  final,  can  only  be  set  aside 

for  partiality  or  mistake •  416,417 

3.  Contractor  bound  by  practical  construction  of  the  contract         .         .417 

4.  Estimates  do  not  conclude  matters  not  referred       .         .         .         •         417 

5.  If  contractor  consent  to  accept  pay  in  depreciated  orders,  he  is 

bound  by  it .         •         .417 

6.  Right  of  appeal  lost  by  acquiescence 417,418 

7.  Engineer  cannot  delegate  his  authority       .         .         .         .         •         .418 

8.  Arbitrator  must  notify  parties,  and  act  bona  fide      ....         418 

SECTION  XIII. 

RELIEF   IN   EQUITY   FROM    DECISIONS  OF   COMPANY'S   ENGINEERS. 

1.  Facts  of  an  important  case  stated 418-424 

2.  Claim  of  contractor  in  the  bill •  425 

.     425 

425 
.     425 

425 
as  to 

.     425 

426 
.     426 

426 
419-425 

426 


3.  Bill  sustained.     Amendment  alleging  mistake  in  estimates 

4.  Relief  only  to  be  had  in  equity 

5.  Proof  of  fraud  must  be  very  clear 

6.  Engineer  being  shareholder,  not  valid  objection 

7.  Decision  of  engineer  conclusive  as  to  quality  of  work,  but  not 

quantity 

8.  New  contract  condonation  of  old  claims  ... 

9.  Account  ordered  after  company  had  completed  work 

10.  Money  penalties  cannot  be  relieved  against  unless  for  fraud 
n.  1.  Review  of  the  cases  upon  this  subject        .... 

11.  Engineers'  estimates  not  conclusive  unless  so  agreed 

12.  Contractor  whose  work  surrendered  by  supplemental  contract  en- 

titled to  full  compensation 426 

13.  Direction  of  umpire  binding  on  contracting  parties,  and  dispenses 

with  certificate  of  full  performance 426,427 

SECTION  XIV. 

FRAUDS   IN    CONTRACTS   FOR   CONSTRUCTION. 

1.  Relievable  in  equity  upon  general  principles      ....  427 


XXXVI  ANALYSIS   OF   THE   CONTENTS. 

2.  Statement  of  leading  eases  upon  this  subject   ....        427-429 

3.  Where  no  definite  contract  closed,  no  relief  can  be  granted        .      430,431 

SECTION  XV. 
engineer's  estimate  wanting  through  fault  of  company. 

1.  In  such  case  contractor  may  maintain  bill  in  equity         .         .         .         432 

2.  Grounds  of  equitable  interference 432,433 

3.  After  company  terminate  contract,  contractor  will  be  enjoined  from 

interference,  and  same  rule  sometimes  extends  to  company  433,  434 

4.  Stipulation  requiring  engineer's  estimate,  not  void      ....     434 

5.  Not  the  same,  as  an  agreement,  that  all  disputes  shall  be  decided 

by  arbitration 434, 435 

6.  Engineer's  estimate  proper  condition  precedent .....     435 

7.  Same  as  sale  of  goods,  at  the  valuation  of  third  party       .         .         .         435 

8.  The  result  of  all  the  English  cases  seems  to  be,  that  only  the  ques- 

tion of  damages  properly  referable  to  the  engineer  .         .      435,436 

9.  The  rule  in  this  respect  different  in  this  country     ....         436 

SECTION  XVI. 

CONTRACTS  FOR  MATERIALS   AND   MACHINERY. 

1.  Manufacturer  not  liable  for  latent  defect  in  materials         .         .         .437 

2.  Contract  for  railway  sleepers,  terms  stated      ....  437,  438 

3.  Construction  of  such  contract      ........     438 

4.  Party  may  waive  stipulation  in  contract,  by  acquiescence        .  438,  439 

5.  Company  liable  for  materials  accepted  and  used  ....     439 

SECTION  XVII. 

CONTRACTS   TO  PAY  IN   THE   STOCK   OF   THE   COMPANY. 

1.  Breach  of  such  contract  generally  entitles  the  party  to  recover  the 

nominal  value  of  stock         ........         439 

2.  But  if  the  party  have  not  strictly  performed  on  his  part,  can  only 

recover  market  value      ........."  440 

3.  Cash  portion  overpaid  will  only  reduce  stock  portion,  dollar  for 

dollar 441-443 

n.  2.  Lawful  incumbrance  on  company's  property  will  not  excuse  con- 
tractor from  accepting  stock 440  -  443 

SECTION  XVIII. 

TIME   AND   MODE  OF   PAYMENT. 

1.  No  time  specified,  payment  due  only  when  work  completed        .         .  443 

2.  Stock  payments  must  ordinarily  be  demanded         ....  443 

3.  But  if  company  pay  monthly,  such  usage  qualifies  contract  .         .  443 

4.  Contract  to  build  wall  by  cubic  yard,  implies  measurement  in  the  wall  443 

SECTION  XIX. 

REMEDY   ON   CONTRACTS   FOR   RAILWAY    CONSTRUCTION. 

1.  Recovery  on  general  counts    ........         444 

2.  Amount  and  proof  governed  by  contract 444 


ANALYSIS   OF   THE   CONTENTS.  XXXV11 

SECTION  XX. 
mechanic's  lien. 

1.  Such  lien  cannot  exist  in  regard  to  a  railway  ....  444,  445 

2.  Opinion  of  Scott,  J 445 

SECTION  XXI. 

REMEDIES  ON   BEHALF   OF   LABORERS   AND    SUB-CONTRACTORS. 

1.  Sub-contractors  not  bound  by  stipulations  of  contractor  .         .         .         445 

2.  Laborers  on  public  works  have  a  claim  against  the  company       .      445,  446 

3.  But  a  sub-contractor  cannot  go  against  the  proprietor  of  the  works, 

although  a  laborer  employed  by  him  may 446 

CHAPTER  XVI. 

EXCESSIVE    TOLLS,    FARE,    AND    FREIGHT. 

1.  English  companies  created  sometimes  for  maintaining  road  only  .     447 

2.  Where  excessive  tolls  taken  may  be  recovered  back        .         .  447,448 

3.  So  also  may  excessive  fare  and  freight 448 

4.  By  English  statute  packed  parcels  must  be  rated  in  mass         .         .         448 

5.  Nature  of  railway  traffic  requires  unity  of  management  and  control        448 

6.  Tolls  upon  railways  almost  unknown  here.     Fare  and  freight  often 

limited 448 

7.  Guaranty  of  certain  profit  on  investment  lawful  .         ....  449 

8.  Restriction  of  freight  to  certain  rate  per  ton  extends  to  whole  line  .  449 

9.  Need  not  declare  for  tolls 449 

10.  Mode  of  establishing  and  requisite  proof .         .....         449 

11.  A  provision  in  a  railway  charter  for  the  payment  of  a  certain  ton- 

nage to  the  state  is  only  a  mode  of  taxation   .         .         .         .         .    -449 

12.  Where  a  company  is  allowed  to  take  tolls  on  sections  of  their  road 

this  makes  each  section  a  distinct  work        .....         450 

13.  14.  Discussion  of  cases  in  New  York  in    regard  to  the  difference 

between  fares  taken  in  the  cars  and  at  the  stations        .         .      450,  451 


CHAPTER  XVII. 

LIABILITY   FOR    FIRES    COMMUNICATED*  BY   COMPANY'S    ENGINES. 

1.  Fact  of  fires  being  communicated  evidence  of  negligence         .         .         452 

2.  This  was  at  one  time  questioned  in  England       .....     452 

3.  Opinion  of  Tindal,  Ch.  J.,  upon  this  point       ....  452,453 

4.  English  companies  feel  bound  to  use  precautions  against  fire       .      453,  454 

5.  Rule  of  evidence  in  this  country  more  favorable  to  companies  454,  455 

6.  But  the  company  are  liable  for  damage   by  fire   through  want  of 

care  on  their  part  ..........     455 

7.  One  is  not  precluded  from  recovery  by  placing  buildings  in  an 

exposed  situation         .........         455 

8.  When  insurers  pay  damages  on  insured  property  may  have  action 

against  company 455, 456 

9.  Where  company  made  liable  for  injury  to  all  property  are  allowed 

to  insure     ...  456 


XXXV111  ANALYSIS   OF   THE    CONTENTS. 

10.  Construction  of  statutes  making  companies  liable  for  loss  by  fires  .     457 

11.  Extent  of  responsibility  of  insurer  of  goods  carried .         .         .  .         457 

12.  Railways  responsible  for  engines  which  do  not  consume  smoke    .  .457 

13.  Construction  of  Massachusetts  statute  and  mode  of  trial  .         .  457,458 

14.  15.  For  what  acts  railway  companies  may  become  responsible 

without  any  actual  negligence 458-462 


CHAPTER  XVIII. 

INJURIES    TO    DOMESTIC    ANIMALS. 

1.  Company  not  liable,  unless  bound  to  keep  the  animals  off  the 

track 465,  466 

2.  Some  cases  go  even  further  in  favor  of  the  company  ....     466 

3.  Not  liable  where  the  animals  were  wrongfully  abroad     .         .         .        466 

4.  Not  liable  for  injury  to  animals  on  land  where  company  not  bound 

to  fence ■         .467 

5.  Where  company  bound  to  fence  are  prima  facie  liable  for  injury  to 

cattle 467 

6.  But  if  owner  is  in  fault,  company  not  liable 468 

7.  In  such  cases  company  only  liable  for  gross  neglect  or  wilful  injury  468,  469 

8.  Owner  cannot  recover,  if  he  suffer  his  cattle  to  go  at  large  near  a 

railway  .         .         .         .         .         .         .         .         .         .         .         .     469 

9.  Company  not  liable  in  such  case,  unless  they  might  have  avoided 

the  injury  . 469,470 

10.  Where  company  are  required  to  keep  gates  closed,  are  liable  to 

any  party  injured  by  omission  .         .         .         .         .         .         .470 

11.  Opinion  of  Gibson,  J.,  on  this  subject      .....         471-473 

12.  17.  Not  liable  for  consequences  of  the  proper  use  of  their  en- 

gines     .         .         . 473,  474,  475 

13.  Questions  of  negligence  ordinarily  to  be  determined  by  jury   .        .         473 

14.  But  this  is  true  only  where  the  testimony  leaves  the  question 

doubtful  .         .#       .         ._ 473 

15.  Actions  may  be  maintained  sometimes  for  remote  consequences  of 

negligence      .         .         .         .         .         .         .         .         .         .         .474 

16-18.  Especially  where  a  statutory  duty  is  neglected  by  company      474,  475 

19.  The  question  of  negligence  is  one  for  the  jury 475 

20.  One  who  suffers  an  animal  to  go  at  large  can  only  recover  for  gross 

neglect 475, 476 

21.  Testimony  of  experts  receivable  as  to  management  of  engines         .         476 

22.  One  who  suffers  cattle  to  go  at  large  must  take  the  risk  .        .         476,  477 

.     477 

477,478 

.     478 

478 

478,  479 

479,  480 
.     480 

480 


23.  The  company  owe  a  primary  duty  to  passengers,  &c. 

24.  In  Maryland,  company  liable  unless  for  unavoidable  accident 

25.  In  Indiana,  common-law  rule  prevails         .... 

26.  In  Missouri,  modified  by  statute       ..... 

27.  In  California,  cattle  may  lawfully  be  suffered  to  go  at  large 

28.  29.  Abstract  of  late  cases  in  Illinois         .... 

30.  The  weight  of  evidence  and  of  presumption 

31.  Company  not  liable  except  for  negligence 

32.  Company  must  use  all  statutory  and  other  precautions        .         .      480,  481 


ANALYSIS   OF   THE   CONTENTS.  XXXIX 

CHAPTER  XIX. 

FENCES. 

SECTION  I. 

UPON   WHOM    RESTS   THE   OBLIGATION   TO   MAINTAIN   FENCES. 

1.  By  the  English  statute,  there  is  a  separate  provision  made  for  fencing  .     483 

2.  This  provision  is  there  enforced  against  the  companies  by  mandamus         483 

3.  But  where  no  such  provision  exists,  the  expense  of  fencing  is  part 

of  the  land  damages   ....  ...         483,484 

4.  And  where  that  is  assessed,  and  payment  resisted  by  thetompany, 

the  land-owner  is  not  obliged  to  fence    .....    484  -  486 

5.  In  some  cases  it  has  been  held  the  fencing  is  to  be  done  equally  by 

the  company  and  the  land-owner         .         .         .         .         .         .         486 

6.  Assessment  of  land  damages,  on  condition  company  build  fences, 

raises  an  implied  duty  on  their  part 487-490 

7.  In  some  states  owners  of  cattle  not  required  to  confine  them  upon 

their  own  land 490 

8.  Lessee  of  railway  bound  to  keep  up  fences  and  farm  accommodations      490 

9.  Company  bound  to  fence  land  acquired  by  grant         ....     491 

10.  Farm-crossings  required  wherever  necessary 491 

11.  Where  land-owner  declines  farm  accommodations       .         .         .         .491 

12.  Fences  and  farm  accommodations  not  required  for  safety  of  ser- 

vants and  employees 492 

13.  Requisite  proof  where  company  liable  for  all  cattle  killed    .         .         .     492 

14.  Party  bound  to  fence  assumes  primary  responsibility        .         .  492,  493 

15.  Company  not  responsible  for  injury  at  road  crossings  .         .         .     493 

16.  Railway  companies  not  responsible  for  injury  to  cattle  by  defect  of 

fence  about  yard    ..........     493 

17.  Case  of  horse  escaping  through  defect  of  fence         .         .         .  493,494 

18.  It  must  appear  the  injury  occurred  through  default  of  company  .         .     494 

19.  Cattle-guards  required  in  villages,  but  not  so  as  to  render  streets 

unsafe 494 

20.  Company  responsible  for  injuries  through  defect  offences  and  cat- 

tle-guards      ...........     495 

21.  Courts  of  New  Hampshire  maintain  common-law  responsibility  .      495,496 

22.  Company  responsible  as  long  as  they  control  road   ....         496 

23.  Maintaining  fences  along  the  line  of  railway,  matter  of  police     .         .     496 

24.  Rule  as  to  land-owner  agreeing  to  maintain  fence,  &c.     .         .         .         496 

25.  Company  not  responsible  for  defect  of  fence,  unless  in  fault         .      496,497 

26.  Railway  not  responsible  in  Indiana,  unless  in  fault  .         .         .         .         497 

27.  Company  not  liable  where  fence  thrown  down  by  others     .         .         .497 

28.  Where  owner  in  fault,  he  cannot  recover,  unless,  &c.      .         .         .         497 

29.  Rule  of  damages  for  not  building  fence,  &c.         ....     497,498 

30.  Land-owner  mnst  keep  up  bars 498 

31.  Illustrations  of  the  general  rule 498 

32.  In  actions  under  statute,  case  must  be  brought  within  it  .  498,  499 

33.  In  Pennsylvania,  one  required  to  keep  his  cattle  at  home    .         .         .     499 

SECTION  II. 

AGAINST   WHAT   CATTLE  THE   COMPANY   IS   BOUND   TO   FENCE. 

1.  At  common  law  every  owner  bound  to  restrain  his  own  cattle     .         .     499 

2.  And  if  bound  to  fence  against  other's  land,  it  extends  only  to  those 

cattle  rightfully  upon  such  land 499,  500 


xl  ANALYSIS   OF  THE   CONTENTS. 

3.  Company  may  agree  with  land-owner  to  fence,  and  this  will  excuse 

damage  to  cattle    .         .         .         .         .         •         •         .         .         .501 
n.  5.  Review  of  cases  upon  this  subject 500,  501 

4.  Owner  may  recover,  unless  guilty  of  express  neglect  .         .         .         .     501 

5.  Comment  upon  the  last  case    ........         502 

6.  Statement  of  case  in  Massachusetts 502,503 

7.  Further  comment  on  the  last  case  ......         503 

8.  Rule  of  responsibility  as  held  in  Kentucky  ....      503,  504 

9.  Rule  laid  down  in  Ohio 504 

10.  Rule  m  Indiana 504 

11.  Distinction  between  suffering  cattle  to  go  at  large  and  accidental 

escape 504, 505 


CHAPTER  XX. 

LIABILITIES    IN    REGARD    TO    CONTRACTORS,    AGENTS,    AND    SUB-AGENTS. 

SECTION  I. 

LIABILITY   FOR   ACTS   AND   OMISSIONS  OF   CONTRACTORS  AND   THEIR  AGENTS. 

1.  Company  not  ordinarily  liable  for  the  act  of  the  contractor  or  his 

servant        .         .  ........         506 

2.  But  if  the  contractor  is  employed  to  do  the  very  act,  company  is 

liable  .         .  507 

3.  American  courts  seem  disposed  to  adopt  the  same  rule        .         .         .507 

4.  Distinction  attempted  between  liability  for  acts  done  upon  movable 

and  immovable  property  not  maintainable       .....     508 

5.  Cases  referred  to  where  true  grounds  of  distinction  are  stated  .         508 

6.  No  proper  ground  of  distinction   in  regard  to  mode  of  employ- 

ment ............         508 

7.  Proper  basis  of  company's  liability  explained 509 

8.  So  long  as  one  retains  control  of  work,  he  is  responsible  for  the 

conduct  of  it 509 

SECTION  II. 

LIABILITY   OF   THE   COMPANY   FOR  THE  ACTS   OF  THEIR  AGENTS  AND   SERVANTS. 

1.  Courts  manifest  disposition  to  give  such  agents  a  liberal  discretion       .     510 

2.  Company  liable  for  torts  committed  by   agents  in  discharge  of 

their  duties  ..........         511 

3.  May  be  liable  for  wilful  act  of  servant  in  the  range  of  his  employ- 

ment     .         .         .         .         .         .         .         .         .         .         .         .511 

4.  Some  of  the  cases  hold  it  necessary  to  show  the  assent  of  the  com- 

pany   511 

n.  6.  Cases  upon  this  subject  reviewed      ......    511-514 

5.  Most  of  the  cases  adhere  to  the  principle  of  respondeat  superior       512  -  514 

6.  But  it  seems  not  to  have  been  considered  that  the  company  is  pres- 

ent    .         .         .         .         .         .         .         ■         .         .         .         .         515 

7.  The  cases  seem  to  regard  the  company  as  always  absent     .  *      .         .     516 

8.  In  cases  where  the  company  owe  a  special  duty,  the  act  of  the  ser- 

vant is  always  that  of  the  company         ......     516 

9.  It  seems  more  just  and  reasonable  to  regard  the  company  as  always 

present  in  the  person  of  their  agent         ......     516 

10.  What  shall  amount  to  ratification  of  the  act  of  an  agent  by  a  cor- 
poration difficult  to  define 517 


ANALYSIS   OF  THE   CONTENTS.  xli 

11.  How  corporations  may  be  held  responsible  for  the  publication  of  a 

libel 517,518 

12.  The  powers  of  a  corporation  are  such  only  as  are  conferred  by  charter     518 

13.  False  certificate  of  capital  being  paid  in  money        ....         518 

14.  Gas  company  not  bound  to  supply  gas  to  all  who  require  it         .         .     518 

15.  Company  may  become  responsible  for  false  imprisonment        .  518,  519 

SECTION  III. 

INJURIES   TO  SERVANTS,   BY   NEGLECT  OF   FELLOW-SERVANTS,  AND  USE  OF   MACHINERY. 

1.  In  general  no  such  cause  of  action  exists  against  company  .         •     520 

2.  But  if  there  is  any  fault  in  employing  unsuitable  servants  or  ma- 

chinery, are  liable 520  -  522 

3.  But  not  liable  for  deficiency  of  help,  or  for  not  fencing  road    .         .         523 

4.  Has  been  questioned  whether  rule  applies  to  servants  of  different 

grades         .         .         .         .         .         .         .         .  .         .         523 

5.  Rule  not  adopted  in  some  states.     Case  of  slaves.     Scotland       .      523,524 

6.  No  implied  contract,  by  ship-owners,  that  ship  is  sea-worthy   .  525,  526 

7.  But  rule  does  not  apply  where  servant  has  no  connection  with  the 

particular  work 526,  527 

n.  15.  Cases  reviewed  in  England,  Scotland,  and  America       .  .     524-526 

8.  Recent  English  case  illustrating  the  English  doctrine      .         .  .         527 

9.  Statement  of  the  law  in  Kentucky,  and  review  of  the  subject  .    527-529, 
10.  Subject  reviewed  by  Chief  Justice  Shaw          ....  530-532 

Late  case  in  Missouri     .         .         .         .         .         .         .         .         .         .533 

1.  Where  a  passenger  is  injured  on  a  railway,  the  prima  facie  pre- 

sumption is,  that  it  resulted  from  the  want  of  due  care  on  the 

part  of  the  company    .         .         .         .         .         .         .         .         .533 

2.  But  nevertheless  it  is  competent  to  prove  the  damage  occurred 

without  their  fault  . 533 

3.  One  who  rides  upon  a  free  pass  or  in  a  baggage-car  is  not  there- 

by deprived  of  his  remedy  against  the  company  for  injuries 
received  through  their  want  of  due  care,  provided  he  was  at 
the  time  a  passenger  and  without  fault  on  his  own  part    .         533,  534 

SECTION  IV. 

INJURIES   BY    DEFECTS   IN   HIGHWAYS   CAUSED    BY    COMPANY'S   WORKS. 

1.  Liable  for  injuries  caused  by  leaving  streets  in  insecure  condition    538,  539 

2.  Municipalities  liable  primarily  to  travellers  suffering  injury     .         .         539 

3.  They  may  recover  indemnity  of  the  company      ....      540,541 

4.  Towns  liable  to  indictment.     Company  liable  to  mandamus,  or  ac- 

tion          541 

5.  Construction  of  a  grant  to  use  streets  of  a  city         ....         541 

6.  Such  grant  does  not  give  the  public  any  right  to  use  the  tracks  .      541,  542 

7.  Bound  to  keep  highways  in  repair  .......         542 

8.  Municipalities  not  responsible  for  injuries  by  such  grant      .         .         .     542 

9.  Canal  company  not  excused  from  maintaining  farm  accommodations 

by  railway  interference  .         .         .         .         .         .         .         .542 

10.  Railway  track  crossing  private  way         ......         542 

11.  One  being  wrong-doer  in  opening  company's  gates  cannot  recover       .     543 

SECTION   V. 

LIABILITY   FOR   INJURY   IN   THE  NATURE   OF   TORTS. 

1.  Railway  crossings  upon  a  level  always  dangerous        ....     544 


Xlii  ANALYSIS   OF   THE   CONTENTS. 

2.  Company  not  excused  by  use  of  the  signals  required  by  statute  544,  545 

3.  Party  cannot  recover  if  his  own  act  contributed  to  injury  .         .  545,546 

4.  But  company  liable  still  if  they  might  have  avoided  the  injury  547,  548 

5.  If  company  omit  proper  signals  not  liable  unless  that  produce  the 

injury 548 

6.  Not  liable  for  injury  to  cattle  trespassing,  unless  guilty  of  wilful  wrong   548 

7.  General  definitions  of  company's  duty     .....        549-551 

8.  Action  accrues  from  the  accruing  of  the  injury 551 

9.  Where  injury  is  wanton  jury  may  give  exemplary  damages    .  551,  552 
10.  One  who  follows  direction  of  gate-keeper  excused       ....     552 

• 

SECTION   VI. 

MISCONDUCT   OF   RAILWAY   OPERATIVES   SHOWN   BY   EXPERTS. 

1.  The  management  of  a  train  of  cars  is  so  far  matter  of  science  and 

art,  that  it  is  proper  to  receive  the  testimony  of  experts      .  552,  553 

2.  In  cases  of  alleged  torts  company  not  bound  to  exculpate   .        .         .     553 

3.  So,  too,  the  plaintiff  is  not  bound  to  produce  testimony  from  experts 

553, 554 

4.  The  jury  are  the  final  judges  in  such  cases.     But  omission  to  pro- 

duce testimony  of  experts  will  often  require  explanation     .         .         554 
n.  6.  General  rules  of  law  in  regard  to  the  testimony  of  experts        .      554,  555 


CHAPTER  XXI. 

RAILWAY    DIRECTORS. 

SECTION    I. 
EXTENT   OF   THE   AUTHORITY   OF  RAILWAY   DIRECTORS. 

1.  Notice  to  one  director,  if  express,  is  sufficient  .         .         .  556,557 

2.  Applications  to  the  legislature  for  enlarged  powers  and  sale  of  com- 

pany's works,  require  consent  of  shareholders  .         .         .         .557 

3.  Constitutional  requisites  must  be  strictly  followed    .         .         .         .         557 

4.  Directors  or  shareholders  cannot  alter  the  fundamental  business  of 

the  company  .........      558,  559 

5.  Inherent  difficulty  of  defining  the  proper  limits  of  railway  enterprise 

559,560 
n.  9.  Opinion  of  Lord  Langdale,  and  review  of  cases,  on  this  subject   560  -  563 

6.  An  act  ultra  vires  can  only  be  confirmed  by  actual  and  not  construc- 

tive assent .    561  -  564 

7.  The  directors  of  a  trading  company  may  give  bills  of  sale  in  security 

for  debts  contracted  by  them 564 

8.  Directors  cannot  bind  company  except  in  conformity  with  charter       .     564 

9.  Company  cannot  retain  money  obtained  by  fraud  of  directors  .         564 

10.  But  it  must  appear  the  plaintiff  was  misled  without  his  own  fault     564,  565 

11.  Company,  by  adopting  act  of  directors,  are  liable  to  make  recompense    565 

12.  A  prospectus  and  report  should  contain  the  whole  truth      .         .         .     565 

13.  Directors   cannot  issue  shares  to  procure  votes  and  control  cor- 

poration        565, 566 

14.  What  will  amount  to  fraud  in  the  reports  of  the  company  .         .         .     566 

15.  Directors  responsible  for  fraudulent  acts  and  representations  .         .         566 

16.  Extent  of  power  of  directors 566 


ANALYSIS   OF   THE   CONTENTS.  xliii 


SECTION  II. 

WHEN   DIRECTORS   BECOME  PERSONALLY   LIABLE. 

1.  Not  liable  personally  for  any  lawful  act  done  as  directors         .  567,  568 

2.  But  are  liable  upon  express  undertaking  to  be  personally  holden         .     568 

3.  Are  liable  personally  if  they  assume  to  go  beyond  their  powers  .      568,  569 

4.  Extent  of  powers  affected  often  by  usage  and  course  of  business      .         569 

5.  But  if  contract  is  beyond  the  power  of  company,  or  not  in  usual 

form,  directors  personally  liable      ....  .      569,570 

6.  Statement  of  case  illustrating  last  point 570 

SECTION    III. 

COMPENSATION   FOR   SERVICE   OF   DIRECTORS. 

1.  In  England,  directors  of  railways  not  entitled  to  compensation  for 

services.         .         .         .         .         .         .         .         .         .         .         .570 

2.  But  the  company  may  grant  an  annuity  to  a  disabled  officer  .         .         571 

3.  In  this  country  are  entitled  to  compensation,  in  conformity  to  the 

order  of  the  board 571 

4.  Some  American  cases  follow  the  English  rule  .         .         .  571,572 

5.  Official  bonds  strictly  limited  to  term  for  which  executed   .         .         .     572 

SECTION  IV. 

RECORDS  OF   THE   PROCEEDINGS   OF   DIRECTORS. 

1.  English  statutes  require  minutes  of  proceedings  of  directors,  and 

make  it  evidence 572 

2.  Presumptions  in  favor  of  their  containing  all  that  passed     .         .      572,573 

3.  Company  will  ratify  unauthorized  act  of  directors  by  acquiescence  573 

SECTION   V. 

AUTHORITY    OF   DIRECTORS   TO   BORROW   MONEY,   AND    BUY  GOODS. 

1.  Authority  of  directors  to  bind  company,  express  or  implied         .      573,  574 

2.  General  agent  will  bind  company  within  scope  of  his  duties.     Di- 

rectors presumed  to  assent  to  his  contracts  .         .         .         .         574 

3.  Contracts  under  seal  of  company  prima  facie  bind  them     .         .      574,  575 

4.  Strangers  must  take  notice  of  general  want  of  authority  in  direc- 

tors, but  not  of  mere  informalities       .         .         .         .         .  675,576 

5.  Cannot  subscribe  for  stock  of  other  companies 576 

6.  May  borrow  money  if  requisite        ...         .         .         .         .         .         576 

7.  How  far  directors  may  bind  company  by  accepting  land  in  pay- 

ment of  subscription       .     576 

SECTION  VI. 

DUTY   OF   RAILWAY   DIRECTORS  TO   SERVE   THE   INTERESTS   OF    COMPANY. 

1.  General  duty  of  such  office  defined 577 

2.  Claim  for  secret  service  and  influence  with  directors  .         .         .         .577 

3.  Opinion  of  Justice  Hoffman  upon  the  legality  of  such  contracts      577  -  583 
n.  3.  Cases  reviewed  upon  the  subject  of  secret  services  .         .         .     578-582 

4.  Directors  cannot  buy  of  themselves  for  the  company.    What  amounts 

to  ratification .  .        .         583 

5.  The  point  further  illustrated.     Authority  of  directors  .         .        .     583 


xllV  ANALYSIS   OF   THE   CONTENTS. 

6.  Purchase  of  shares  to  buy  peace 583,  584 

7.  Director  may  loan  money  to  company         ......     584 

8.  Director  de  facto  sufficient       ........         58*4 

9.  Hotel  company  may  lease  premises  to  others       .....     584 

10.  Director  cannot  recover  for  work  done  for  company        .         .         .         584 

11.  Contract  of  projector  not  binding  on  company    .....     584 

12.  Director  cannot  act  where  interested       ...         .         .         .  584,585 

13.  Court  will  not  act  on  petition   of  member  who  is  a  mere  puppet 

for  others        ...........     585 

SECTION   VII. 

RIGHT   TO   DISMISS   EMPLOYEES.  —  RULE  OF   DAMAGES   WHEN  DONE   WRONGFULLY. 

1.  Some  cases  hold  that  if  wrongfully  dismissed  may  recover  salary      585,  586 

2.  English  courts  do  not  favor  this  view.     Case  stated  by  English  judges     586 

3.  The  American  cases  have  sometimes  taken  the  same  view       .         .         587 

4.  Where  the  contract  provides  for  a  term  of  wages,  after  dismissal,  it 

is  to  be  regarded  as  liquidated  damages 587 

5.  Statute  remedy,  in  favor  of  laborers  of  contractors,  extends  to  la- 

borers of  sub-contractors      587 


CHAPTER  XXII. 

ARRANGEMENTS    BETWEEN    DIFFERENT   COMPANIES. 

SECTION  I. 

LEASES,   AND    SIMILAR   CONTRACTS,    REQUIRE   THE   ASSENT   OF   LEGISLATURE. 

1.  By  English  statutes  one  company  may  pass  over  road  of  another, 

but  contract  binding 588 

2.  But  cannot  transfer  duty  of  one  company  to  another  without  legis- 

lative grant         ..........         589 

3.  Original  company  liable  to  public  after  such  lease.     But  lessee  not 

excused  .         .         .         .         .         ...         .         .590-592 

4.  Courts  of  equity  enjoin  companies  from  leasing  without  legislative 

consent       .         .         .         . 592 

5.  But  such  contracts,  made  by  legislative  grants,  are  to  be  carried 

into  effect       .         .         .         .         .         .         .         •         .         •         .592 

6.  Majority  of  company  may  obtain  enlarged  powers  with  new  funds  .   •      592 

7.  So  the  majority  may  defend  against  proceedings  in  legislature     .         .     593 

8.  Legislative  sanction  will  not  render  valid  contracts  ultra  vires  .         593,  594 

9.  Railway  company  cannot  assume  duties  of  ferry  without  legislative 

grant •         •         •         •         •         •         •     594 

10.  The  grant  to  a  railway  of  the  implied  right  to  establish  a  ferry  over 

a  public  river  directly  beyond  the  terminus  of  its  road,  does  not 

extend  the  responsibility  of  the  company  to  the  ferry  .         .         594 

11.  Such  a  ferry  may  become  an  encroachment  upon  another  by  carry- 

ing passengers  gratuitously     .......      594,  595 

12.  The  "rant  to  a  railway  of  a  ferry  in  express  terms  will  not  author- 

ize them  to  carry  anything  except  passengers  and  freight  pass- 
ing over  their  line       ........  595 

SECTION  II. 

NECESSITY   OF   CONTRACTS   OF   CORPORATIONS    BEING   UNDER   SEAL. 

1.  The  English  courts  manifest  great  reluctance  to  abandon  the  for- 
mer rule  of  law  on  this  subject 595 


ANALYSIS   OF   THE   CONTENTS.  xlv 

n.  2.  Extended  review  of  the  English  and  some  of  the  American 

cases 595-602 

2.  Reference  to  later  decisions       .......     596-603 

SECTION  III. 

DUTY   OF   THE   RESPECTIVE   COMPANIES   TO   PASSENGERS   AND   OTHERS. 

1.  Company  bound  to  keep  road  safe.     Act  of  other  companies  no 

excuse        ...........         603 

2.  Some  cases  hold  that  passengers  can  only  sue  the  company  carry- 

ing them 603,  604 

3.  Passenger-carriers  bound  to  make  landing-places  safe      .         .         .         605 

4.  But  those  who  ride  upon  freight  trains,  by  favor,  can  only  require 

such  security  as  is  usual  upon  such  trains        .....     605 

5.  Owners  of  all  property  bound  to  keep  it  in  state,  not  to  expose 

others  to  injury  ..........         605 

6.  This  rule  extends  to  railways,  where  persons  are  rightfully  upon 

them      .         .         .         .         .         .         .         .         •  •         .606 

n.  3.   Cases,  as  to  the  necessity  of  privity  of  contract  existing,  re- 
viewed  604,  605 

7.  One  who  keeps  open  public  works  is  bound  to  keep  them  safe  for 

use w      606,607 

8.  Corporations  presumptively  responsible  to  the  same  extent  as  nat- 

ural persons  in  the  same  situation        ......         607 

SECTION  IV. 

EXTENT   OF   THE  POWERS   AND   DUTIES   OF  LESSEES   OF   RAILWAYS. 

1.  Statement  of  the  points  in  an  important  English  case         .         .     608  -  611 

2.  Lessees  of  railways  liable  for  their  own  acts,  and  for  many  acts  of 

lessors .  611,612 

SECTION   V. 

CONTRACTS    BETWEEN   DIFFERENT   COMPANIES   REGULATING   THE  TRAFFIC. 

1.  Such  contracts  generally  held  valid  and  binding  .         .         .      612,  613 

2.  Arrangements  to  avoid  competition  valid         .         .         ...         .         613 

SECTION    VI. 

WHAT   13   REQUISITE   TO    CONSTITUTE   A   PERPETUAL   CONTRACT   BETWEEN   DIF- 
FERENT  RAILWAY    COMPANIES.  613 

SECTION  VII. 

CONTRACTS   BY   RAILWAYS   ULTRA   VIRES,   AND   ILLEGAL. 

1.  Contracts  to  make  erections  not  authorized  by  their  charter        .         .     614 

2.  Contracts  to  indemnify  other  companies  against  expense  .  614,  615 

3.  Contracts  to  divide  profits  .........     615 

4.  Illustration  of  the  doctrine  ultra  vires      .         .         .         .         .  615,  616 

5.  How  far  railways  may  accept  bills  of  exchange.     Railway  com- 

panies not  empowered  to  make  bills  and  notes  except  from 
necessity         ..........      616,  617 

6.  Contracts  ultra  vires  cannot  be  specifically  enforced  against  the 

directors     ...........         617 

7.  Money  unlawfully  borrowed  company  must  refund      .         .         .        .617 


Xlvi  ANALYSIS   OF  THE   CONTENTS. 

8.  How  far  acts  ultra  vires  confirmed  by  acquiescence  .  617,  618 

9.  Company  not  restrained  from  making  unlawful  payments  on  the 

ground  of  policy    .         .         .         .         .         .         .         .         .         .618 

10.  Decision  rests  on  no  safe  grounds     .         .         .         .         .         .         .         618 

11.  It  seems  too  much  like  paying  black  mail  to  buy  peace       .         .      618,  619 

1.  The  power  of  a  receiver  to  sue  in  the  name  of  the  corporation   .         619 

2.  Foreign  railway  corporation  acquired  no  prerogative  rights  by 

leasing  a  portion  of  the  track  of  a  domestic  railway    .         .         .620 

3.  Statement  of  the  contract  and  ground  of  holding  it  void,  as 

being  ultra  vires      .         .         .         .         .         .         .         .         .         620 

4.  Further  reasons  why  such  contract  cannot  be  specifically  per- 

formed here 620 

n.  3.  Comments  upon  the  preceding  propositions       .         .         .         620,  621 

SECTION  VIII. 

COMPANIES  EXONERATED  FROM  CONTRACTS,  BY  ACT  OF  LEGISLATURE.     621 

SECTION  IX. 

WIDTH  OF  GAUGE.  —  JUNCTION  WITH  OTHER  ROADS. 

1.  Where  the  act  requires  broad  gauge,  does  not  prohibit  mixed  gauge  .  622 

2.  Permission  to  unite  with  other  road,  signifies  a  road  de  facto  .         .  622 

3.  Equity  will  sometimes  enjoin  company  against  changing  gauge  .         .  622 

4.  Contract  to  make  gauge  of  the  companies  the  same,  although  con- 

trary to  law  of  state,  at  its  date,  may  be  legalized  by  statute       .         623 

NOTES. 

Note  I.  to  §  133,  p.  544 625-633 

Note  II.  to  §  129,  p.  506.     Liability  for  act  of  the  agent  or  servant  of 

the  contractor 633 

Note  HI.  to  §  76,  p.  298 634 

1.  Question  of  jurisdiction  of  the  subject-matter  of  controversy  .      634,635 

2.  The  right  of  way,  where  different  companies  run  upon  the  same 

track 635 

3.  The  mode  of  estimating  compensation,  where  one  street  railway 

company  use  the  track  of  another  company         .         .         .       635,  636 
The  subjects  of  the  commission  discusssed  in  detail. 

1.  Until  perfection  is  reached,  the  exact  relations  of  the  municipali- 

ties and  street  railways  cannot  be  strictly  defined.  Scope  is  re- 
quired for  development  and  growth 643,  644 

2.  We  do  not  regard  the  interests  of  towns  and  cities  as  opposed  to 

that  of  street  railways 644 

3.  Caution  required  to  be  used  in  regard  to  concessions  of  public  right  644,  645 

4.  Reserve  in  regard  to  concessions  to  private  interests  of  great  mag- 

nitude and  success,  excusable.  This  may  be  done,  in  excess. 
Primary  control  of  streets,  and  ultimate  control,  if  practicable, 
should  remain  with  municipalities 645,  646 

5.  Relations  of  street  railways  to  each  other,  and  to  the  use  of  streets 

by  other  vehicles,  &c 646 

(1.)  Rule  of  compensation  where  one  road  uses  the  track  of  another 

without  doing  any  competing  business 646 

(2.)  The  best  mode  of  accommodating  other  travel  to  street  railways  646,  647 
(3.)  The  gauge  of  street  railways  and  other  carriages  should  be 

the  same 647,  648 


ANALYSIS   OF  THE   CONTENTS.  xlvii 

(4.)  Paving  street  and  three  feet  on  each  side,  fully  indemnifies 

the  cities  and  towns,  in  ordinary  cases       .....     648 

(5.)  Railways  should  not  be  allowed  in  street,  unless  room  for  two 
tracks,  and  for  carriages  to  stand,  and  others  pass  on  either 
{  side 648 

(6.)  Street  railways  should  be  restricted  within  these  reasonable 
limits,  in  laying  new  tracks.  Improvements  suggested  in 
Boston 648,649 

6.  Further  discussion  of  the  use  of  tracks  by  different  companies         649,  650 
(1.)  Branch  lines  should  account  for  the  net  profits  of  all  business 

done  by  them  exclusively  upon  the  trunk  line         .         .         650,  651 

(2.)  To  exclude  the  branch  line  from  the  trunk  might  put  it  too 

much  in  the  power  of  the  latter 651 

(3.)  Not  practicable  to  require  trunk  roads  to  draw  the  cars  of 

branch  lines  over  their  own  road,  in  all  cases         .         .  651,  652 

(4.)  The  rights  of  trunk  and  branch  lines,  upon  sound  principles  of 

construction 652,  653 

(5.)  The  mode  of  estimating  compensation  in  such  cases,  recom- 
mended by  us,  will  cure  the  desire  to  multiply  trips       .         .         653 

7.  The  relations  of  street  railways  to  other  travel  further  discussed       .     654 

8.  The  propriety  of  consolidating  street  railways  in  Boston,  discussed 

and  doubted 654,  655 

9.  Omnibuses  cannot,  properly,  be  excluded  from  streets  where  street 

cars  are  allowed 655,  656 

10.  The  subject  of  removing  ice  and  snow  from  the  streets  discussed     656,  657 

11.  The  motive  power  of  street  railways.  Dummy  engines  .  .  .657 
(1.)  The  examination  of  these  engines.  Their  use  not  fully  tested  657 
(2.)  They  will  be  exceedingly  useful  in  rural  and  suburban  districts  658 
(3.)  They  occupy  but  small  space,  ascend  steep  grades  with  ease, 

and  possess  great  power 658 

(4.)  They  will  be  likely  to  come  into  general  use  in  light  and  short 

passenger  traffic,  both  on  steam  and  street  railways  .         .      658,  659 

12.  Commutation  tickets.     Best  regulated  by  the  companies.     Change 

recommended 659-661 

Note  IV.  to  §  124,  p.  447 662 

Note  V.  to  §17,  p.  53  .        ........  662,663 


TABLE  OF  CASES. 


Page 
A.  &  N.  L.  Kailw.  v.  Smith  172 

A.  &  S.  Railw.  v.  Baugh  489 

v.  Carpenter      262 
A.  &  St.  L.  Railw.  v.  Commission- 
ers of  Cumberland  County    271,  278 
Aberdeen  Railw.  v.  Blakie  85 

Aberystwith  Railw.,  in  re  49 

Abraham  v.  Great  Northern  Railw.  324 
i;.  Reynolds  532 

Ackland  v.  Lewis  110 

Adair  v.  Shaw  169 

Adams  v.  Ferick  149 

v.  Frye  124 

v.  London     &     Blackwall 

Railw.  370 

v.  Saratoga  &  Wash.  Railw. 

295,  299 

Adderly  v.  Storm  136 

v.  Storm  &  Bailey  136 

Adler  v.  Milw.  Patent  Brick  Co.     1 70 

Adley  v.  Whitstable  Co.  89 

Agar  v.  Athenaeum  Life  Ass.  Co.    575 

v.  Regent's  Canal  Co.     195,  196 

Agricultural  Bank  v.  Burr  114 

v.  Wilson  114 

Aikin  v.  Western  Railw.  595 

Alabama  &  Tenn.  Rivers  Railw.  v. 

•  Kidd  510 

Albany  N.  Railw.  v.  Lansing  262,  268, 

295 
Aldham  v.  Brown  49 

Aldred  v.  North  Midland  Railw.       44, 

390 
Aldrich  v.  Cheshire  Railw.  289,  337 
Aldridge  v.  Great  Western  Railw.  452 
Alexander  v.  Crystal  Palace  Railw. 

355 
Alexandra  Park  Co.,  in  re  440 

Algeo  v.  Algeo  587 

Alger  v.  Miss.  &  Mo.  Railw.  478 

Alleghany  v.  Ohio  &  Pennsylvania 

Railw.  309 

Alleghany  City  v.  McClurkan  563 

Allen  v.  Hayward  508 

Allen  v.  Montgomery  R.  164 

VOL.   I.  d 


Page 

Allyn  v.  Prov.  W.  &  B.  Railw.         272 

Alton  Railw.  v.  Nor thcott  416 

Ambergate,  N.  &  Boston  &  E.  J. 

R.  v.  Coulthard  179 

v.  Midland  Railw.  337 

v.  Mitchell  147 

Ambergate  R.  v.  Norcliffe  179 

Ammermon  v.  Wyoming  Land  Co.  537 

Anderson  v.  Kerns  Draining  Co.        66 

v.  N.  &  R.  Railw.  67 

v.  Ohio  &  Miss.  Railw.     166 

Andover  Turnpike  v.  Gould  161 

v.  Hay  161 

Andrews  v.  City  of  Portland  408 

v.  Ohio  &  Miss.  Railw.      1 74 

Anglo  California  G.  M.  Co.  v.  Lewis 

167 
Anonymous  57,  60 

Anthony  Street,  matter  of  272 

Appleby  v.  Meyers  413 

Applegate  v.  Lexington  &  Ohio 

Railw.  299 

Armington  v.  Barnet  230,  256 

Armstrong  v.  Burnet  149 

v.  Waterford  &  Limer- 
ick Railw.  367 
Arnold  v.  Mayor  of  Poole        351,596, 

599,  600 
v.  Ruggles  110 

Arthur  v.  Commercial  &  Railroad 

Bank  249 

Ashby  v.  Eastern  Railw.  271,  272,  342 
Ashtabula  &  New  L.  Railway  v. 

Smith  206,  392,  663 

Ashton  v.  Lord  Longdale  108 

Ashworth  v.  Stanwix  521 

Aspinwall  v.  Ohio  &  Miss.  Railw.     202 
Assop  v.  Yates  521 

Aston  v.  Boore  226 

Athenaeum  Life  Ins.  Co.,  in  re  Shef- 
field 141 
Atkinson  v.  Marietta  &  Cin.  Railw.  266, 

394 
Atlantic,  &c.  Railw.  v.  Sullivant       240, 

663 
Atlantic  Cotton  Mills  v.  Abbott       1 76 


1 


TABLE   OF   CASES. 


Atlee  v.  Backhouse  448 

Att'y-Gen.  v.  Corporation  of  Rye       61 
v.  Davy  83 

v.  Detroit  &  Erie  Plank- 
Road  Co.  398 
v.  Dorset  Railw.  269 
v.  Great  North'n  Railw.   62, 
143 
v.  Hudson  River  Railw.  326 
v.  London  &  Southamp- 
ton Railw.  405 
v.  Nichol,  339 
v.   Sheffield  Gas  Con- 
sumers' Co.  339 
v.  Stevens                         330 
v.  Tewkesbury  &  Great 
Malvern  Railw.  9 
Aug.  &  Sav.  Railw.  v.  McElmurry  545 
Aurora  v.  West                                   392 
Aurora  Branch  Railw.  v.  Grimes      474 
Australian  Royal  Mail  Co.  v.  Mar- 

zetti  "598 

Aylesbury  R.  v.  Mount  182, 184 

v.  Thomson  155 

Ayres  v.  Morris  &  Essex  Railw.         88 


B. 


B.  &  S.  Railw.  v.  Compton  291 

B.  O.  &  M.  Railw.  v.  Smith  246 

Babcock  v.  Western  Railw.      219,  330 
Backhouse  v.  Bonomi  551 

Backus  v.  Lebanon  257,  259 

Bagge,  ex  parte  112 

Bagnall  v.  London  &  North  West- 
ern Railw.  344 
Bagshawe  v.  Eastern  Union  Railw. 

6,  28,  32 
Bailey  v.  Hollister  202 

v.  Mayor  of  New  York  334 

v.  Phil.  &  Wil.  Railw.  326 

v.  Western  Vermont  Railw.  439 
Baker,  ex  parte  564 

v.  Johnson  248,  284 

Baldwin  v.  Western  Railw.  550 

Bale  v.  Clelland  566 

Baltimore  &  Ohio  Railw.  v.  Lam- 
born  489,  628 
v.  State  of  Maryland      625 
v.  Thomson     292,  349,  555 
v.  Wheeling  200 
Baltimore  &  Susquehanna  Railw. 

v.  Nesbit  240,  286 

v.  Musselman  198 

v.  Woodruff     455,  550 
Banet  v.  Alton  &  Sangamon  Railw. 

163,  171,  198 


Bangor   &   Piscataqua   Railw.   v. 

Harris  254 

Bangor  Bridge  Co.  v.  McMahon     162, 

164 
Bangor  House  Proprietary  v.  Hinck- 
ley 161 
Bank  v.  Mc Chord  124 
Bank  of  Augusta  v.  Earle  57 
of  Columbia  v.  Patterson         410 
of  Commonwealth  v.  Curry    124 
of  Manchester  v.  Allen  70 
of  Metropolis  v.  Guttschlick   410 
of  Middlebury  v.  Edgerton         4 
of  Pennsylvania  v.  Common- 
wealth                                 391 
of  South  Carolina  v.  Gibbs       60 
of  United    States   v.   Dan- 
dridge  70 
v.  Planters'  Bank  55,  60 
of  Utica  v.  Smalley                 114 
of  Waltham  v.  Waltham         110 
Barber  v.  Essex                                   534 
Barclay  v.  Howard's  Lessee             251 
Bardstown  &  Lou.  Railw.  v.  Met- 
calfe                                           56,  235 
Bargate  v.  Shortridge                       112 
Barker  v.  Midland  Railw.  93 
v.  North  Staffordshire  Railw. 

353 
v.  Troy  &  Rutland  Railw.  395, 
411,440 
Barnard  v.  Bagshaw  143 

v.  Wallis  3,  233 

Barned  v.  Hamilton  130 

Barnes  v.  Ward  605 

Barnesley  Canal  Co.  v.  Twibill        338 
Barrett,  ex  parte  145 

v.  Great  Northern  Railw.      96 
v.  Stockton  &  D.  Railw.      237 
Barrington  v.  Miss.  Central  Railw.  108 
Barron  v.  Baltimore  231 

Barry  v.  Croskey  568 

v.  Merchants'  Exchange  Co.  106 
Bartlett  v.  Baker  633 

Barton  v.  Port  Jackson,  &c.  Plank- 
Road  Co.  562 
Barton's  Case  167 
Bass  v.  Chicago,  Bur.  &   Quincy 

Railw.  457,  479 

Bassett  v.  Norwich  &  Nashua  Railw. 

525 
Bateman  v.  Mid-Wales  Railw.  616 
Bates  v.  New  York  Ins.  Co.  113 

Bath  River  Navigation  Co.  v.  Wil- 
lis 240 
Batty  v.  Duxbury  534 
Battye  v.  Gresley  84 
Bayley  v.  Wilkins                             128 


TABLE   OF   CASES. 


Bayliffe  v.  Butterworth  128 

Bayntine  v.  Sharp  453 

Beach  v.  Smith  108,  189 

Beardmer  v.  London  &  Northwest- 
ern Railw.  ,  387 
Beaty  v.  Knowler  237 
Beaulieu  v.  Finglam  .  453 
Beckitt  v.  Bilbrough  6 
Beckwith  v.  Sydebotham  554 
Bedford  Railw.  v.  Bowser  178,  206 
Beebe  v.  Ayres  101 
Beekman  v.  Saratoga  &  Sch.  Railw.  229 
Beene  v.  Cahawba  &  M.  R.  163 
Beers  v.  Ilousatonic  Railw.  473 
Belfast   &   Angelica  Plank-Road 

Co.  v.  Chamberlain  67 

Bell  v.  Francis  10 

v.  Gough  325 

v.  Hull  &  Selby  Railw.  332,  342 
v.  London  &  N.  W.  Railw.  557 
v.  Midland  Railw.  399 

Bellefontaine  &  Iowa  Railw.  v.  Bai- 
ley 476 
Beman  v.  Rufford                         74,  592 
Bend  v.  Susquehannah  Bridge  Co.  63, 

182 
Benedict  v.  Coit  306 

Bennett,  ex  parte  165 

v.  Button  101 

v.  Railw.  270,  279 

Bentinck  v.  Norfolk  Estuary  243,  389 
Benton  v.  Phil.,  W.  cSc  B.  Railw.  296 
Beverlev  v.  Lincoln  Gas  Light  & 

Coke  Co.  410,495,599 

Bigelow  v.  Miss.  Central  &  Tenn. 

Railw.  280 

Binney's  Case  109 

Binney  v.  Hammersmith  &  City 

Railw.  359 

Bill  v.  Darenth  Valley  Railw.  601 

v.  Sierra  Nevada  L.  W.  Co.       62 
Birkenhead,  L.  &   Ch.    Railw.  v. 

Webster  1 79 

Birkenhead  Railw.  v.  Pilcher  191 

Birmingham  v.  Sheridan  131 

Birmingham,  B.  &  Th.  J.  Railw.  v. 

Locke  6,  165,  182 

Birmingham  &  Oxford  J.  Railw.  v. 

Reg.  357 

Birmingham  Railw.  v.  Locke  155 

Bish  v.  Johnson  197 

Bishop  v.  North  2,  3 

Bissell  v.  Mich.  So.  &  N.  Ind.  Railw. 

591 
Black  River  Railw.  v.  Clarke  66 

Black  River  &  Utica  Railw.  v.  Bar- 
nard 66 
v.  Clarke         187 


Blackwell  v.  Wiswall 

509 

Blair  v.  Corby 

445 

Blake  v.  Ferris 

507 

v.  Rich 

251 

v.  Thirst 

633 

v.  Midland  Railw. 

629,  632 

Blakemore   v.   Bristol   &   Exeter 

Railw.  605 

v.  Glamorganshire  Ca- 
nal Co.  391 
Bland  v.  Crowley  29,  39 
Bligh  v.  Brent  "  109 
Bliss  v.  Hosmer  243 
v.  Pass.  River  Railw.  335 
Blodgett  v.  Morrill  158,  159 
Blood  v.  Nashua  &  Lowell  Railw.  349 
Bloodgood  v.  M.  &  H.  Railw.  230, 
242,  270,  282,  284,  311,  511 
Blount  v.  Hipkins  132,  149 
Bloxam,  ex  parte  15 
Bluck  v.  Mullalue  584 
Blundell  v.  Winsor  111 
Boardman  v.  Gore  124 
Bog  Lead  Co.  v.  Montague  1 20 
Bonaparte  v.  Camden  &  Amboy 

Railw.  54,  270,  282 

Bond  v.  Morse  569 

Boody  v.  Rut.  &  Bur.  Railw.    442,  443 
Booker,  ex  parte  159 

Boothby  v.  Androscoggin  &  K. 

Railw.  346 

Bordentown  &  South  A.  Turnpike 

v.  Camden  &  Amboy  Railw.         475 
Bosanquet  v.  Shortridge  111 

Bostock  v.  North  Staffordshire 

Railw.  250 

Boston  &  Lowell  Railw.  v.  Boston 

&  Maine  Railw.  614 

v.  Proctor  101 

v.  Salem  &  Lowell  Railw.      258 

Boston  &  Maine  Railw.  v.  Babcock  225 

v.  Bartlett  204,  227 

v.  County  of  Middlesex         297 

v.  Lawrence  400 

Boston  &  Providence  Railw.  v. 

Midland  Railw.  283,  387,  390 

Boston  &  Worcester  Railw.  v.  Old 

Colony  &  F.  R.  Railw.  278 

Boston  Water  Power  Co.  v.  Boston 

&  Worcester  Railw.  256,  325 

Boston  Type  &  Stereotype  Foun- 
dry v.  Spooner  66 
Boswell  v.  Townsend  446 
Boughton  v.  Carter  333 
Boulter  v.  Webster  633 
Boulton  v.  Crowther  306 
v.  Skelehley  152 
Bowen,  ex  parte  12 


Hi 


TABLE   OF   CASES. 


Bowlby  v.  Boll  127 

Bowman  v.  Troy  &  Boston  Railw.  476 

V.  Watl.cn  331 

Boyd  v.  Chesapeake  &  Ohio  Canal 

Co.  557 

v.  Negley  255 

Boy n ton  v.  Peterboro'  &  Shirley 

Railw.  282,  349 

Brace  v.  New  York  Central  Railw.  494 

Bradley  v.  Boston  &  Maine  Railw.  544 

v.  Holdsworth  109 

v.  London  &  N.  W.  Railw.  381 

v.  N.  Y.  &  N.  H.  Railw.       56, 

230,  237,  239,  296,  306 

Bradshaw,  in  re  280 

v.  E.  &  W.  I.  Docks  & 

Birm.  J.  Railw.         363 

v.  Rogers  231 

Brainard  v.  Conn.  River  Railw.      227, 

300 
Brainerd  v.  Clapp  253 

Brand  v.  Hammersmith  &  City 

Railw.  293 

Branin  v.  Conn.  &  Pass.  Railw.        446 
Branson  v.  Philadelphia  223,  266 

Braynton  v.  London  &  Northwest- 
ern Railw.  388 
Breed  v.  Eastern  Railw.  364 
Breedlove  v.  M.  &c.  Railw.  67,  179 
Brewster  v.  Hough  260 
Bridges  v.  Wilts.,  Somerset,  &  Wey- 
mouth Railw.  368 
Brigham  v.  Agricultural  Branch 

Railw.  392 

Bright  v.  Hutton  13 

Brightwell  v.  Mallory  110 

Briggs  v.  Ferrell  590 

v.  Taylor  504,  522 

Briscoe  v.  Bank  of  Commonwealth 

of  Kentucky  261 

British  Provident  Life  Ins.  Co., 

ex  parte  Grady  618 

Broadbent  v.  Imperial  Gas  Co.         275 
Broadway  Bank  v.  McElrath  153 

Railw.  v.  Metropolitan 

Railw.  634 

Brock  v.  Conn.  &  Pass.  Railw.         492 
Brockett  v.  Railw.  391 

Brooklyn  Central  &  J.  Railw.  v. 

Brooklyn  City  Railw.  306,  536 

Brooks  v.  Buffalo  &  Niagara  Falls 
Railw.  547 

v.  New  York  &  Erie  Railw.  467, 
500 
Brotherhood,  in  re  618 

Broom  v.  Comm.  79 

Broughton  v.  Manchester  Water- 
works 576 


Brown  v.  Beatty  265,  338 

v.  Bellows  224 

v.  Byrne  129 

v.  Cayuga  &  Susquehannah 

Railw.  296,333,612 

v.  Cincinnati  263 

v.  Duplessis  313 

v.  Illins  296 

v.  Lynn  632 

v.  Maxwell  520,  531 

v.  Overbury  435 

v.  Peterson  256 

v.  Providence,  Hartford,  & 

Fishkill  Railw.      288,  502 
v.  Providence,  Warren,  & 

Bristol  Railw.  275 

Brownlee  v.  Ohio,  Ind.,  &  111. 

Railw.  159,  174,  203 

Brownlow  v.  Metropolitan  Board     606 
Bryan  v.  Lewis  118 

Bryon  v.  Met.  Saloon  Omnibus  Co. 

564 
Bryson  v.  Warwick  &  Birmingham 

Canal  Co.    •  6 

Buck  v.  Squiers  300 

Buckerridge  v.  Ingram  109 

Buckfield  Branch  Railw.  v.  Irish     164, 

165 
Bucknam  v.  Bucknam  300 

Buffalo  v.  Holloway  534 

Buffalo  &  Alleghany  Railw.  v.  Carey  67 
Buffalo  &  New  York  City  Railw.  v. 

Dudley  165,  199,  208 

Buffalo,  Corning,  &  New  York 

Railw.  v.  Pottle  200 

Buffum  v.  New  York  &  Boston 

Railw.  274 

Building  Association  v.  Sende- 

meyer  146 

Bull  v.  Chapman  16 

Buncombe  T.  Co.  v.  Me  Carson  67 

Burbridge  v.  New  Albany  &  S. 

Railw.  349 

Burgess  v.  Gray  508 

v.  Great  Western  Railw.     605 
Burkinshaw  v.  Birm.  &  Ox.  J. 

Railw.  360,  371 

Burlington  &  Mo.  River  Railw.  v. 

White  202 

Burmester  v.  Norris  74 

Burnes  v.  Pennell  141,  556 

Burnet  v.  M.  Bisco  1 72 

Burnett  v.  Lynch  123,  136,  137 

Burns  v.  Dodge  285 

v.  Milw.  &  Miss.  Railw.  255,  338 
Burnside  v.  Steamboat  Co.  456 

Burr  v.  Wilcox  183 

Burrell  v.  Jones  568 


TABLE   OF   CASES. 


liii 


Burroughs  v.  Housatonic  Railw.       455 

Burt  v.  Farrer  64 

Burton,  ex  parte  13 

v.  North  Missouri  Railw.        478 

v.  Phil.  Wil.  &  Bait.  Railw.  473, 

515 

v.  Railw.  Co.  548 

Bush  v.  Steinman  507,  -508 

Butler  v.  Hunter  633 

v.  Mehrling  277 

v.  Pennsylvania  261 

Butman  v.  Vermont  Central  Railw. 

291 
Button  v.  American  Tract  Society     61 


C.  &  P.  Railw.  v.  Ball  274 

C.  C.  &  C.  Railw.  v.  Elliott     468,  490, 

631 
v.  Keary  523,  531 

v.  Terry  632 

C.  H.  &  D.  Railw.  v.  Waterson  468 
C.  H.  &  N.  W.  Railw.  v.  Goss  504 

C.  P.  &  A.  Railw.  v.  City  of  Erie  66 
C.  P.  &  Ind.  Railw.  v.  Simpson  274 
Cabot  &  West  Springfield  Bridge 

Co.  v.  Chapin  175 

Cahill  v.  Kalamazoo  Ins.  Co.  84 

Calder  Navigation  Co.  v.  Pilling  88,  92 
Caledonia  Railw.  v.  Lockhart  383 

v.  Sprat  296 

Caledonian  &  Dumbartonshire 
Junction  Railway  *?.  Helensburg 
Harbor  Trustees  47 

Caledonian  Railw.  v.  Ogilvy  342 

Callender  v.  Marsh  306 

v.  Painesville  &  H.  Railw. 

663 
Cam.  &  Amboy  Railw.  v.  Briggs     237, 

449 
Camden  Bank  v.  Halls  124 

Campbell  v.  Mesier  487 

Canal  Commissioners  v.  People  300 
Canandaigua  &  N.  Railw.  v.  Payne 

262,  294 
Canning  v.  Williamstown  632 

Cape  Sable  Company's  Case  109 

Capper  v.  Earl  of  Lindsey  4 1 

Cardiff  C.  &  C.  Company,  in  re 

Norton  143 

Carle  v.  B.  &  P.  Canal  &  R.  R.  Co.  52, 

531 
Carlisle  v.  Cahawba  &  Marion 

Railw.  171 

Carman  v.  Steubenville  &  Ind. 

Railw.  288,  508 


Carmichael,  ex  parte  13 

Carnochan  v.  Norwich  &  Spauld- 

ing  Railw.  350,359 

Carpenter  v.  County  Commissioners 

of  Bristol  272 

Carr  v.  Georgia  Railw.  &  Banking 

Co.  237,  254,  337 

Carrol  v.  New  York  &  New  Haven 

Railw.  542 

Carson  v.  Western  Railw.  296 

Carter  v.  Great  Eastern  Railw.        359 
Case  v.  Thompson  282 

Catchpole  v.  Ambergate  Railw.        144 
Caterham  Railw.  v.  London  &  Br. 

Railw.  96 

Cayzer  v.  Taylor  522 

Central  Bridge  Corporation  v.  City 

of  Lowell  256 

Central  Military  Track  Railw.  v. 

Rockafellow  486,  500 

Central  Ohio  Railw.  v.  Lawrence  476 
Central  Plank-Road  Co.  v.  Clem- 
ens 200 
Central  Railw.  Co.  v.  Bunn  198 
v.  Hitfield  222 
Central  Turnpike  Co.  v.  Valentine  107 
Centre  Turnpike  Co.  v.  Smith  447 
Chadsey  v.  McCreery  663 
Chamber  v.  London,  Chatham,  & 

Dover  Railw.  355 

Chamberlain  v.  East  End  of  Lon- 
don &  Crystal  Palace  Railw.        344 
v.  Painsville  &  Hud- 
son Railw.  81,  173 
v.  West  End  of  Lon- 
don &  C.  Railw.    341 
Chambers  v.  Manchester  &  Milford 

Railw.  616 

Champion  v.  Memphis  &  Charles- 
ton Railw.  200,  392 
Champlain  &  St.  Lawrence  Railw. 

v.  Valentine  325 

Champlin  v.  Pendleton  300 

Chandler  v.  Broughton  516 

Chapin  v.  Boston  &  Providence 

Railw.  274 

v.  Sullivan  Railw.         248,  494 

v.  Vermont  &  Mass.  Railw.  125 

Chapman  v.  Albany  &  Sch.  Railw. 

295,  299,  302,  307 
v.  Atlantic  &  St.  Law- 
rence Railw.  456 
v.  Mad  River  &  Lake 

Erie  Railw.  176 

Chappie's  Case  156,  19.2 

Charitable  Corporation  v.  Sutton     578 

Charles  River  Bridge  v.  Warren 

Bridge  69,  237,  258,  261 


liv 


TABLE   OF   CASES. 


Charles  River  Railw.  v.  County 

Commissioners  of  Norfolk  351 

Charlestown  Branch  liailw.  v.  Mid- 
dlesex 282 
Charlotte  &  S.  C  Railvv.  v.  Blake- 

ly  163,  187 

Chase  v.  New  York  Central  Railw. 

290, 450 
Chasemore  v.  Richards  334 

Chatham  v.  Brainerd  300 

Cheltenham  &  Great  Western  Un- 
ion Railw.  v.  Daniel  6,  123,  181 
v.  Medina  181 
Cheney  v.  Boston  &  Maine  Railw.     99 
Chesapeake  &  Ohio  Canal  Co.  v. 

Baltimore  &  Ohio  Railw.  257 

Chester  Glass  Co.  v.  Dewey  114 

Chestnut  Hill  Turnpike  Co.  v.  Rut- 

ter  _  511 

Chicago,  Burlington,  &  Quincy 

Railw.  v.  Cauffinan  480 

v.  Coleman  573 

v.  Parks  92,  103 

v.  Wilson  245 

Chicago  &  Miss.  Railw.  v.  Patchin 

253,  473,  486,  490 

Chicago  &  Mont.  Railw.  v.  Bull        278 

Chicago  &  Rock  Island  Railw.  v. 

Still  548 

v.  Ward     485 

Child  v.  Coffin  114 

v.  Hudson  Bay  Co.  88,  89 

Childs  v.   Somerset  &   Kennebec 

Railw.  411,441 

Chilton   v.    London    &    Croydon 

Railw.  90,  97 

Chinnock,  ex  parte  156 

Chouteau  Spring  Co.  v.  Harris         113 
Church  v.  Imperial  Gas  Light  Co. 

596,  600 
v.  Northern  Central  Railw.  272 
Cincinnati  Coll.  v.  State  237 

Cincinnati  &  Spring  Grove  Avenue 

Railw.  v.  Commonwealth  312 

Cincinnati,    Indiana,    &    Chicago 

Railw.  v.  Clarkson  208 

Cincinnati,  W.  &  Z.  Railw.  v.  Clin- 
ton Co.  Commissioners  230 
City  of  Cincinnati  v.  Stone                507 
of  London  v.  Vanacre  79 
of  Roxbury  v.  Boston  &  Provi- 
dence Railw.                                    228 
Claflin  v.  Wilcox                                 515 
Clarence  Railw.  v.  Great  North  of 

England  Railw.  219,  236 

Clark  v.  Boston,  Cone,  &  Mont. 

Railw.  335 

v,  Dickson  141 


Clark  v.   Guardians  of  Cuckfield 

Union      597,  598,  599,  601 
v.  Mayor  of  Syracuse  230 

v.  Monongahela  Nav.  Co.      187 
v.  Syracuse  &  Utica  Railw.  468, 
469,  489,  500 
v.  Vermont  &  Canada  Railw. 

263,  491 

Clark's  Case  89 

Clarke,  ex  parte  1 3 

v.  Dickson  139 

v.  Imperial  Gas  Light  Co.  571, 

576 

v.  M.,  Sh.  &  L.  Railw.         269 

v.  Rochester,  L.  &  N.  F. 

Railw.  491 

Clarkson  v.  Hudson  River  Railw.    280 

Clay  v.  Rufford  557 

Clement  v.  Canfield  490,  590 

Cleve.  &  Pittsb.  Railw.  v.  Ball         274, 

277 
v.  Kelley     441 
Cleveland   &  Toledo   Railw.    v. 

Prentice  273 

Cleveland  Iron  Co.  v.  Stephenson    566 
Cleveland,  Painesville,  &  Ashtabula 

Railw.  v.  City  of  Erie  622 

Clipper  v.  Logan  554 

Clive  v.  Clive  149 

Coates  v.  Mayor  of  New  York  230 

Cockburn,  ex  parte  113 

Cockerell  v.  Van  Dieman's  Land 

Co.  215 

Coe  v.  Wise  606 

Coffin  v.  Collins  75,  85 

Coggs  v.  Bernard  578 

Coil  v.  Pittsburg  Female  College       68 
Colcock  v.  Louisville  Railw.  413 

Colcough  v.  Nashville  &   N.  W. 

Railw.  273,  296,  337 

Cole  v.  Crystal  Palace  Railw.  355 

Coleman,  ex  parte  145 

College  of  Physicians  v.  Salmon         60 
Collins  v.  Blantern  574 

v.      South      Staffordshire 
Railw.  381 

Collinson  v.  Newcastle  &  Darling- 
ton Railw.  348 
Colman  v.  Eastern  Counties  Railw. 

32,  195,  197,  235,  560,  612 
Colonial  Life  Ass.  Co.  v.  Home  & 

Col.  Life  Ass.  Co.  62 

Columbine  v.  Chichester  133 

Columbus,  P.  &  I.  Railw.  v.  Simp- 
son 263 
v.  Ind.  &  Belief. 
Railw.        593,  622 
Colvin  v.  Turnpike  Co.  197 


TABLE   OF   CASES. 


lv 


Commonwealth  v.  Alger  329 

v.  Boston  &  Maine  Raihv. 

278,  330,  364 
v.  Canal  Commissioners  84 
v.  Clarkson  417 

v.  Cullen  197 

t\    Erie    &    Northeast. 

Railw.         237,  309,  392 

v.  Fisher  284,  306 

v.  Fitchburg  Railw.  387,  391, 

392 

v.  Hartford  &  New  Haven 

Railw.  400 

v.  Haverhill  400 

v.  Mayor  of  Lancaster       1 70 
v.  Morris  68 

v.  Power  93,  94,  97 

v.  Ritcher  .232 

v.  Roxbury  329 

v.  Tewksbury  230 

v.  Trustees  of  St.  Mary's 

Church  80 

v.  West  Chester  Railw.       65 

Compton  v.  Susquehannah  Railw.  240, 

284 
Conn.  &  Pass.  Rivers  Railw.  v. 

Bailey  158,  164,  198,  204 

Conn.  &  Pass.  Railw.  v.  Baxter  1 72, 1 73 

Connecticut  River  Railw.  v.  Clapp  268 

&  Pass.  Railw.  v.  Holton  247 

Concord  Railw.  v.  Greely        263,  274, 

276,  335 
Congor  v.  Galena,  &c.  U.  Railw.  504 
Connop  v.  Levy  13 

Conro  v.  Port  Henry  Iron  Co.  80 

Conservators  of  the  Tone  v.  Ash       5  7 
Contoocook  Valley  Railw.  v.  Bar- 
ker 1 76 
Conybeare  v.  New  B.  &  Canada 

Railw.  140,  564 

Cook  v.  Parham  526 

Cooke  v.  Oxley  171,  204,  205 

Cooling,  in  re  344 

Coon  v.  Sy.  &  Utica  Railw.     520,  523, 

532 
Coop  v.  Champ.  Trans.  Co.  455 

Cope  v.  Thames  Haven  Dock  & 

Railw.  597 

Copeland  v.  Northeastern  Railw.     121 
Coppin  v.  Braithwaite  102 

Corby  v.  Hill  220 

Corey  v.  Buffalo,  Corning,  &  N.  Y. 

Railw.  310 

Cork  &  B.  Railw.  v.  Goode  192 

Cork  &  Brandon  Railw.  v.  Caze- 

nove  191 

Cork  &  Youghal  Railw.  v.  Patter- 
son 193 


Cornwall  v.  Sullivan  Railw.  500 

Cornwall  G.  C.  M.  Co.  v.  Bennett  167 
Cort  v.  Ambergate,  Not.,  B.  &  E. 

J.  Railw.  412 

Corwin  v.  New  York  &  Erie  Railw.  472 
Coster  v.  New  Jersey  Railw.  252,  280 
Costigan   v.   Mohawk   &   Hudson 

Railw.  585 

Cotheal  v.  Brouer  215 

Cother  v.  Midland  Railw.  389 

Couch  v.  Steel  526 

Cox  v.  Burbidge  460,  461 

Coy  v.  Utica  &  Sch.  Railw.  4  74 

Cozens  v.  Bognor  Railw.  241 

Craig  v.   Rochester   City   &   Br. 

Railw.  311 

Cram  v.  Bangor  House  84 

Crawford  v.  Chester  &  Holyhead 

Railw.  389 

v.  Delawne  312 

Crawfordsville  Railw.  v.  "Wright  516 
Creed  v.  Lancaster  Bank  108 

Crittenden  v.  Wilson  337 

Crocker  v.  Crane  65,  190,  279 

v.  New  London,  Williman- 

tic  &  Palmer  Railw.  103, 

515 

Croft  v.  Allison  511 

v.  London  &  N.  W.  Railw.     345 

Cromford    &    High  Peak   Railw. 

v.  Lacey  182, 186 

v.  Stockport,  D.  &  W.  Bridge 
Railw.  20 

Cromford  Canal  Co.  v.  Cutts  344 

Crosby  v.  Hanover  247,  256,  261 

Croskey  v.  Bank  of  AVales  15 

Cross  v.  Mill  Co.  165 

Crouch  v.  London  &  N.  W.  Railw.  448 
Cruger  v.  Hudson  River  Railw.  280 
Cullen  v.  Thompson  565 

Cumberland  Coal  Co.  v.  Sherman  517 
Cumberland  Valley  Railw.  v.  Baab 

33,  172 
v.  Hughes        606 
Cumming  v.  Prescott  86, ,149 

Cunliff  v.   Manchester  &  Bolton 

Canal  Co.  74,  194 

Cunningham  v.  E.  &  K.  Railw.        1 74 

v.  Rome  Railw.  346 

Curran  v.  State  of  Arkansas  168 

Currier  v.  Boston  &  M.  Railw.         277 

v.  Marietta  &  Cin.  Railw.    234 

Curtis  v.  Leavitt  574 

v.  Vermont  Central  Railw. 

272,  485 
Cushman  v.  Smith  241,  265,  281 

Cutbill  v.  Kingdom  77 

Cutler  v.  Middlesex  Factory  Co.     162 


lvi 


TABLE   OF   CASES. 


1). 


Dadson  v.  East  Kent  Railw.  354 

Daley   v.   Norwich   &  Worcester 

Railw.  632 

Dalton  v.  Midland  Railw. '  144 

v.  Southeastern  Railw.  632 

Daley  v.  Thompson  7 

Dana  v.  Bank  of  United  States  80 

Danbury  Railw.  v.  Wilson       163,  164 

190,  197,  198,  203 

Dance  v.  Girdler  11,  22 

Dand  v.  Kingscote  2 

Danville  Bridge  Co.  v.  Pomeroy      440 

D'Arcy  v.  Tamar,  K.  &  C.  Railw.      85 

Dartmouth  College  v.  Woodward      54, 

55,  70,  257 

Dartmouth  &  Torbay  Railw.  in  re      50 

Dascomb  v.  Buffalo  &  State  Line 

Railw.  545,  546 

Dater  v.  Troy  T.  &  Railw.  511 

Dauchy  v.  Brown  114 

Dauner  v.  South  Carolina  Railw.    471 
Davidson  v.  Boston  &  Maine  Railw. 

232,  272,  282,  284,  330,  381 

v.  Seymour  577 

v.  Tulloch  140,  568 

Davies  v.  Mann  631 

Davis  v.  Charles  Riv.  Branch  Railw. 

272 
v.  Combermere  41 

v.  E.  T.  &  Ga.  Railw.  240 

v.  La  Crosse  &  Milw.  Railw.  338 
v.  Lamoille   County  Plank- 
Road  606 
v.  Leominster                            535 
v.     London     &     Blackwall 

Railw.  338 

v.  Meeting  H.  in  Lowell  88 

v.  Russell  285 

Day  v.  Day  151 

v.  Newark  India  Rubber  Co.      58 

v.  Owen  88 

Dayton  v.  Borst  153,  169,  170 

Dean  v.  Sullivan  Railw.  249,  251,338, 

481 
Dean  and  Canons  of  the  English 

Cathedrals  60 

Dearborn  v.  Boston,  C.  &  Mon- 
treal Railw.  54,  263,  287 
Degg  v.  Midland  Railw.  521,  531 
De  Grave  v.  Mayor  of  Monmouth  601 
De  Varaigne  v.  Fox  252 
De  Wint^.  Wiltse  486 
Del.  &  Atlantic  Railw.  v.  Irick  197,  203 
Delaware  Canal  Co.  v.  Sansom  164 
Denny  v.  North  W.  Christian  Uni- 
versity 162 


Denton  v.  Livingston  11 0 

De  Pass's  Case,  156 

Deposit  &  G.  Life  Ass.  Co.  v.  Ays- 
cough  191 
Derby  v.  Phil.  &  Read.  Railw.          510 
Devlin  v.  Second  Avenue  Railw.     430 
Devoe  v.  Penrose   Ferry  Bridge 

Co.  326 

Dewers  v.  Pike  568 

Dickinson  v.  Valpy  10 

Diggle   v.    London    &    Blackwall 

Railw.  410,597,600,601 

Dillingham  v.  Snow  57 

Dimes  v.  Grand  Junction  Co.  420 

Direct   Shrewsbury  &   Leicester 

Railw.  in  re  165 

Directors,  &c.  v.  Railw.  272,  273 

Dixon  v.  Ranken  524 

Dobson,  ex  parte  125 

Dodd  v.  Salisbury  &  Y.  Railw.        245, 

389 

Dodge  v.  Burns  255 

v.  County  Commissioners     287, 

288,  289 

Doe  v.  Beebe  231 

v.  Bristol  &  Exeter  Railw.        389 

v.  Georgia  Railw.  &  Banking 

Co.  286 

v.  Leeds  &  Bradford  Railw.      366 
v.  Manchester,  Bury,  &  Rosen- 
dale  Railw.  365 
v.  North  Staffordshire  Railw.  358, 
370,  389 
Domestic   &   Foreign  Missionary 

Society's  Appeal  61 

Donaldson  v.  Fuller  587 

Donnaher  v.  State  of  Mississippi      54, 

230 
Donnigon  v.  Ch.  &  N.  W.  Railw.  490 
Doo  v.  London  &  Croydon  Railw.     25, 

360 
Dorian  v.  E.  Br.  &  W.  Railw.  264,  274 
Doubleday  v.  Muskett  9 

Doughty  v.  Somerville  &  Eastern 

Railw.  239,  240,  270 

Dovaston  v.  Payne  251,  300,  499 

Dover  &  Deal  Railw.,  ex  parte 

Mowatt  12 

Dover  Harbor  v.  L.  C.  &  Dover 

Railw.  269 

Downer  v.  Bank  114 

Downie  v.  White  158 

Downing  v.   Mount  Washington 

Road  Co.  518 

Drake  v.  Hudson  River  Railw.        283, 

299,  307 

Draper  v.  Gordon  134 

v.  Williams  220 


TABLE   OF   CASES. 


lvii 


Drew  v.  New  River  Co.  533 

Druid,  Case  of  the  514 

Drummond,  ex  parte  156 

Drybutter  v.  Bartholomew  109 

Dublin  &  W.  Railw.  v.  Black  191 

DuBois  v.  Delaware  &  Hudson  Ca- 
nal Co.  415,417 
Dudden  ?>.  Union  296 
Duke  v.  Cahawba  Nav.  Co.  66 
of  Norfolk  v.  Tennant            372 
Dun  v.  Charleston                             336 
Duncan  v.  Chamberlain                    150 
v.  Hodges                              124 
v.  Luntley                            112 
v.  Railroad  Co.                     524 
Duncuft  v.  Albrecht          109,  131,  132 
Dunham  v.  Trustees  of  Rochester    233 
Dunn  v.  City  of  Charlestown            219 
v.  North  Missouri  Railw.        445 
Dunston  v.  Imperial  Gas  Co.     410,  570 
Durham    &    Sunderland     R.    v. 

Walker  2,  3 

Durkee  v.  Vermont  Central  Railw.  131 
Dutchess    Cotton  Manufacturing 

Co.  v.  Davis  163 

Duvergier  v.  Fellows  111 

Duxbury    v.    Vermont     Central 

Railw.  535 

Dyer  v.  Jones  412 

v.  Walker  &  Howard  68 

Dynen  v.  Leach  521 


E. 


E.  &  W.  I.  Docks  &  B.  J.  Railw. 

v.  Gattke  296.  336,  340,  372 

Eakin  v.  Raub  282 

Eakright  v.  L.  &  N.  I.  Railw.  66,  174 
Eales  v.  Cumberland  Black  Lead 

Co.  15 

Earl  of  Lindsay  v.  Great  Northern 

Railw.  44 

Earle  v.  Hall  508 

East   Anglian  Railw.   v.   Eastern 

Counties  Railw.  28,  33,  44,  197,  615 
East  Lancashire  Railw.  v.  Hatters- 
ley  433 
v.  L.  &  Yorksh.  Railw.  592 
East  London  Water  Works  Co.  v. 

Bailey  22 

East  Pascagoula  Hotel  Co.  v.  West  66, 

108 
East  Penn.  Railw.  v.  Hiester  275 

v.  Hottenstine  275 
East  Tennessee  &  Ga.  Railw.  v. 

St.  John  549 

East  Wh.  M.  M.  Co.  in  re  145 


Easton  v.  Little  Miami  Railw.  504 

Eastern  Counties  Railw.  ex  parte     367 
v.  Broom     102 
Eastham  v.  Blackburn  Railw.  280 

Eastwood  i\  Bain  564 

Edgerly  v.  Emerson  84 

Edinboro'   &   Dundee   Railw.   v. 

Leven  360 

Edinburgh  &  G.  Railw.  v.  Stirling 

&D.  Railw.  612 

Edinburgh,  L.  &  N.  H.  Railw.  v. 

Ilibblewhite  165,  214 

Edinburgh,  Perth,  &  Dundee  Railw. 

v.  Philip  39,  49 

Edwards  v.  Grand  Junction  Railw.    1 7, 

20,  35,  48 

v.  Great  Western  Railw.  448 

v.  Union  Bank  of  Florida  511 

Egbert  v.  Brooks  134 

Elder  v.  Bemis  508 

Elderton  v.  Emmens  586 

Electric  Tel.  Co.  in  re  156 

v.  Bunn  156 

Ellicottville  Plank-Road  v.  Buffalo  301 

Elliott,  in  re  381 

v.   Fairhaven  &  Westville 

Railw.  314 

v.  Northeastern  Railw.  344 

v.  South  Devon  Railw.  357 

Ellis  v.  Coleman  617 

v.  Essex  Bridge  Co.  114 

v.   London   &    Southwestern 

Railw.  467 

v.  Marshall  69,  195 

v.  Sheffield  Gas  Consumers' 

Co.  507 

v.  Swanzey  300 

Ellison  v.  Mobile  &  Ohio  Railw.       1 74 
Elsworth  v.  Cole  119 

El  wood  v.  Bullock  88 

Elysville  v.  O'Kisco  163 

Enfield  Toll  Bridge  v.  Hartford  & 

N.  H.  Railw.  237,  258 

Embury  v.  Conner  219,  230 

Emmerson's  Case  143 

Enthoven  v.  Hayle  124 

Eppes  v.  M.  G.  &  T.  Railw.  209 

Erie    &    Northeastern   Railw.  v. 

Casey  253 

Ernest  v.  Croysdell  617 

v.  Nichols  558 

Essex  Bridge  Co.  v.  Tuttle  164 

Etty  v.  Bridges  150 

Eustis  v.  Parker  54 

Evans  v.  Haefner  248,  285 

Evansville  Railw.  v.  Cochran  264 

Evansville  &  C.  Railw.  v.  Cochran  484 
v.  Fitzpatrick  264,  4S4 


lviii 


TABLE   OF   CASES. 


Evansville  &  Crawfordsville  Railw. 
v.  Dick  234,  252,  311 

Everhart  v.  West  Chester  &  Phila- 
delphia Railw.  184,187,199 

Eversfield  v.  Midsussex  Railw.        245, 

389 

Eward  v.  Lawrenceburg  &  Upper 
Miss.  Railw.  516 


F. 


F.  Street,  Matter  of  263 

Falconer  v.  Campbell  69 

Faley  v.  Hill  422 

Falls  v.  Belfast  &  B.  Railw.  356 

Farlow,  ex  parte  347 

Farmers'  Bank   of  Maryland  v. 

Iglehart  114 

Farnum  v.  Blaekstone  Canal  Co.  58 
Farrow  v.  Vansittart  2 

Farwell  v.   Boston   &   Worcester 

Railw.  520,  525,  530,  532 

Faulkner  v.  Hebard  198 

Faunce  v.  Burke  408 

Faviell  v.  Eastern  Counties  Railw.  350 
Fawcett    v.   York    &    North    M. 

Railw.  470 

v.  Whitehouse  578 

Fearnley  v.  Morley  447 

Featherstonbaugh  v.  Porcelain  Co.  566 

Fenton  v.  Trent  &  Mersey  Nav. 

Co.  344 

Fenwick  v.  Bell  554 

Feoffees  of  Heriot's  Hospital  v.  Gib- 
son 385 
Ferguson   v.   Brighton   &   S.   C. 

Railw.  355 

Ferris  v.  Van  Buskirk  491 

Fewings  v.  Tisdal  587 

Ffooks  v.  London  &  S.  W.  Railw.     74, 

75 
Field  v.  Field  84 

v.  Lelean  120 

v.  Newport,  Ab.  &  Hereford 

Railw.  447 

v.  Vermont  &  Mass.  Railw.     271 
Filder    v.   L.   Brighton  &  South 

Coast  Railw.  515,  585 

Finlay  v.  Bristol  &  Exeter  Railw.  597 
Finnie  v.  Glasgow  &  S.  W.  Railw.  449 
First  Parish  in  Sutton  v.  Cole  61 

Fiser  v.  Miss.  &  Tenn.  Railw.  108 

Fish  v.  Dodge  508 

Fisher  v.  Essex  Bank  153 

v.  Evansville  &  Crawfords- 
ville Railw.  201 
v.  Price  119 
Fishmongers'  Co.  v.  Robertson        596 


Fitch  v.  N.  H.  M.  L.  &  Stonington 

Railw.  595 

Fitchburg  Railw.  v.  Boston  &  Maine 
Railw.  221,  271,  273,  330,  342 

v.  Charlestown    M.    Fire 

Ins.  Co.  456 

v.  Gage  662 

v.  Grand  Junction  Railw. 

&  Depot  Co.  405 

Fitzpatrick  v.  New  Albany  &  Sa- 
lem Railw.  527 
Flagg  v.  Lowber  580 
Flamank,  ex  parte  219 
Fletcher  v.   Auburn  &  Syracuse 

Railw.  284,  299,  302 

v.  Boston  &  Maine  Railw.  591 

v.  Great  Western  Railw.  297 

v.  Rylands  458 

Flower  v.  London,  Br.  &  S.  Coast 

Railw.  236 

Fooks  v.  Wilts.,  Somerset,  &  Wey- 
mouth Railw.  365 
Foote  v.  City  of  Cincinnati  102 
Ford  v.  Ch.  &  N.  W.  Railw.     284,  313 
Forrest  v.   Manchester,    S.   &   L. 

Railw.  558 

Forster    v.    Cumberland    Valley 

Railw.  351 

Fort  Edward,  &c.  Plank-Road  Co. 

v.  Payne  1 70 

Forward  v.  Hampshire  &  Hampden 

Canal  Co.  257 

Fosberry  v.  Waterford  &  Limerick 

Railw.  404 

Foster  v.  Bank  of  England  217 

v.  Essex  Bank        194,  511,  516 

v.  Oxford  W.  &  W.  R.  85 

v.  Walter  61 

Fowler  v.  Kennebec  &  Portland 

Railw.  408 

Fox  v.  Northern  Liberties  511 

v.  State  of  Ohio  231 

Franklin  v.  Southeastern  Railw.      632 

Bridge  Co.  v.  Wood  3 

Glass  Co.  v.  Alexander     161 

v.  White  161 

Franklyn  v.  Lamond  125 

Fraser  v.  Whalley  565 

Frazier  v.  Pennsylvania  Railw.       521, 

531 
Freedle  v.  North  Carolina  Railw.  274 
Freeman  v.  Winchester  163,  164 

Fry's  Ex'r.  v.  Lex.  &  Big  S.  Railw. 

107,  165,  198,  199,  392 
Fuller  v.  Dame  578 

Furniss  v.  Hudson  River  Railw.      289, 

398 
Fyler  v.  Fyler  149 


TABLE   OF   CASES. 


lix 


(I. 


Gage  v.  Newmarket  Railw.    30,  33,  37 
Gahagan    v.    Boston    &    Lowell 

Railw.  551,  553 

Galena  &  Chicago  Railw.  v.  Griffin 

480,  497 

v.  Jacobs       550 

v.  Loorais      548 

v.  Yarwood  553 

Galloway  v.  Mayor  &  Commonalty 

of  London  &  Metropolitan  Railw. 

238 
Galvanized  Iron  Co.  v.  Westoby       13 
Ganett  v.  Salisbury  &  Dorset  Junc- 
tion Railw.  433 
Gardiner  v.  Boston  &  Worcester 

Railw.  308 

v.  Smith  491,492 

Gardner  v.  Charing-Cross  Railw.     359 

v.  Newburgh      229,  282,  283, 

333 

Garrick  v.  Taylor  120 

Garris  v.  Portsmouth  &  Roanoke 

Railw.  468 

Garrison  v.  Memphis  Ins.  Co.         ,  456 
Gaskell  v.  Chambers  571 

Gawthern  v.  Stockport,  Desley,  & 

W.  Railw.  323 

Gayle  v.  Cahawba  R.  163 

Gebhart  v.  Junction  Railw.  162 

Gerhard  v.  Bates  142 

Getty  v.  Hudson  River  Railw.  326 

Gibbons  v.  Ogden  328 

Gibbs   v.   Trustees  of  Liverpool 

Docks  606 

Gibson  v.  East  India  Co.  410 

Giesy  v.  Cincinnati,  Wil.  &  Zanesv. 

Railw.  251,  264 

Gifford  v.  New  Jersey  Railw.  196 

Gilbert  v.  Cooper  6 

v.  Havermeyer  349 

Giles  v.  Hurt  165 

v.  Taff  Vale  Railw.  515 

Gillet  v.  Moody  170 

Gillinwater  v.  Mad.  &  Ind.  Railw.  239, 

527,  541 
Gilman  v.  Hall  412 

Gilpin  v.  Howell  110 

Gilshannon  v.  Stony  Brook  Railw. 

523,  532,  541 
Gittings  v.  Mayhew  11 

Glamorganshire  Canal  Co.  v.  Blake- 
more  391 
Glass  Co.  v.  Dewey  162 
Gleason  v.  Briggs                                544 
Glover  v.  London  &  Northwestern 
Railw.                                           515 


Glover  v.  North  Staffordshire  Railw. 

234,  294,  372 
v.  Powell  329 

Goddard  v.  Hodges  13 

v.  Pratt  1 1 

Goffi;.  Great  Northern  Railw.  518 
Gold  v.  Vermont  Central  Railw.  278 
Gold  Mining  Co.  ex  parte  585 

Gooday   v.    Colchester   &   Stour 

Valley  Railw.  17,31,44 

Goodman  v.  Pocock  585 

Goodrich  v.  Eastern  Railw.  332 

v.  Reynolds  183 

Goodtitle  v.  Kibbe  231 

Goodwin  v.  Union  Screw  Co.  573 

Gorman  v.  Pacific  Railw.  469,  473 

Goshen  Turnpike  Co.  v.  Hurtin  163 
Gould  v.  Hudson  River  Railw.         232, 

310,  325 
Governor  &  Company  of  Copper 

Miners  v.  Fox        596,  598,  600,  601 
Governor   &    Company   of   Plate 

Manufacturers  v.  Meredith  306 

Grady,  ex  parte  145,  618 

Graff  v.  City  of  Baltimore  286 

Graff's  Ex'r.  v.  Pittsburg  &  Steu- 

benville  Railw.  117,  182 

Graham,  ex  parte  68 

v.  Birkenhead  74 

Grand  J.  &  Depot  Co.  v.  County 

Commissioners  323 

Grand  Junction  Railw.  v.  White     485 
Grannahan  v.  Hannibal  &  St.  Jo- 
seph Railw.  446 
Grant  v.  Mechanics'  Bank  of  Phil- 
adelphia 115 
Gratz  v.  Redd  164 
Gravenstine's  Appeal  74 
Gray  v.  Coffin                                    150 
v.  Hook                                     578 
v.  Liverpool  &  Bury  Railw.     47, 
219,234 
v.  Monongahela  Navigation 

Co.  195 

v.  Portland  Bank  .63 

Grayble   v.   York   &    Gettysburg 

Turnpike  Co.  187,  188 

Grays  v.  Lynchb.  &  Salem  Turn- 
pike Co.  67,  164 
Great  Falls  &  Conway  Railw.  v. 

Copp  178 

Great  Luxembourg  Railw.  v.  Mag- 
nay  583 
Great  North  of  England,  Clarence 
&  Hartlepool  Junction  Railw.  v. 
Clarence  Railw.                              377 
Great  North  of  England  Railw.  v. 
Biddulph                                    7,  147 


lx 


TABLE   OF   CASES. 


Great  Northern  Railw.  ex  parte        367 
v.  Eastern  Counties 

Railw.  588 

r.  Harrison  437 

v.  Kennedy  165 

v.  S.  Yorks.  Railw.    449 
Great  Western  Railw.  v.  Bacon      480 
v.  Birmingham  &  Ox- 
ford June.  Railw.     40, 
592 
v.  Decatur  308 

v.  Geddis  481 

v.  Goodman  102 

v.  Helm  479 

v.  Metropolitan  Co.        143 
v.  Morthland  480 

v.  Oxford,  Worcester,  & 
Wolverhampton 
Railw.  622 

v.  Rushout  83,  592 

v.  Thompson  486 

Greathed  v.   S.  W.  &  Dorchester 

Railw.  6 

Green  v.  Boody  248 

v.  Miller  84 

v.  Morris  &  Essex  Railw.     267, 

280 

v.  Murray  130 

v.  Seymour  69 

v.  Winter  134 

Greenaway  v.  Adams  133 

Greene  v.  Dennis  3 

Greenville  &  Columbia  R.  v.  Cath- 

cart  164 

v.  Coleman      197,  200 

v.  Nunnarnaker       268 

v.  Partlow        262,  263 

v.  Smith  163 

v.  Woodsides  188 

Greenwood  v.  Wilton  Railw.  271 

Gregory  v.  Patchett  618 

Grizewood  v.  Blane     '  119 

Groux  &  C.  Co.  v.  Cooper  62 

Guest  v.  Homfray  226 

Gunn  v.  London  &  Lancashire  Ass. 

Co.  16,  584 


H. 


H.  &  P.  Plank-Road  Co.  v.  Bryan  187, 

209 
H.  B.  Coal  Co.  v.  Teague  167 

Hackett  v.  Boston,  Cone.  &  Mont. 

Railw.  277 

Haddon  v.  Ayers  584 

Hager  v.  Reed  131 

Hagerstown     Turnpike    Co.     v. 

Creeger  3 


Ilaight  v.  City  of  Keokuk  312 

Haines  v.  Taylor  339 

Haldeman  v.  Penn.  Railw.  255 

Hale  v.  Union  Mutual  Fire  Ins.  Co.  511 

Hall  v.  Chaffee  227 

v.  Norfolk  Estuary  Co.     112,130 

v.  Pickering  516 

v.  Power  93,  94 

v.  Selma  &  Tenn.  Railw.  188 

v.  U.  S.  Insurance  Co.      114,  182 

v.  Vt.  &  Mass.  Railw.    43,  570,  571 

Halloran  v.  N.  Y  &.  Harlem  Railw.  466 

Halstead  v.  Mayor  of  New  York      233 

Hambro  v.  Hull  &  London  Fire 

Ins.  Co.  564 

Hamden  v.  New  Haven  &  North- 
ampton Co.  535 
Hamilton  v.  Annapolis  &  Elk  Ridge 

Railw.  255, 282 

v.  New  York  &  Harlem 

Railw.  307 

v.  Newcastle  &  Danville 

Railw.  569 

v.  Smith  8 

Avenue,  Matter  of  261 

Plank-Road  v.  Rice  197,  203 

Hammack  v.  White  464 

Hammon  v.  Southeastern  Railw.      453 

Hanna  v.  Cin.  &  F.  W.  Railw.         198 

Hannibal  &  St.  Joseph  Railw.  v. 

Higgins  538 

v.  Rowland    ^  279 

Hannuic  v.  Goldner  118,  127 

Harborough  v.  Shardlow  286 

Harby  v.  E.  &  W.  I.  Docks  &  B. 

J.  Railw.  396 

Hard,   Adm'r.   v.  Vt.  &   Canada 

Railw.  523,  532 

Harding  v.  Goodlet  219 

Hare  v.  London  &  N.  W.  Railw.      120, 

613 
v.  Waring  127 

Hargreaves  v.  Lancaster  &  Preston 

J.  Railw.  43 

v.  Parsons  109 

Harlaem  Canal  Co.  v.  Seixas  164 

Harrington  v.  Du  Chastel  578 

Harris,  ex  parte  1 20 

v.  Roof  579 

Harrisburg  v.  Crangle  283 

Harrison  v.  Heathorn  9 

v.    Lexington    &    Ohio 

Railw.  221 

Hart  v.  Mayor  of  Albany  233 

v.  Western  Railw.  456 

Hartford  &  N.  H.  Railw.  v.  Boor- 
man  155,  184 
v.  Croswell       193,  194 


TABLE   OF   CASES. 


Ixi 


Hartford  &  N.  H.  Railw.  v.  Ken- 
nedy 163 
Hartly  v.  Ilarman                               587 
Harvard  Branch  Bank  v.  Rand        278 
Harvey  v.  Lackawanna  &  Bloomsb. 
Railw.                                       266,  347 
v.  Lloyd                        273,  364 
v.  Thomas  369 
Hasking  v.  Phillips                            367 
Haslett's    Executors    v.    Wotker- 

spoon  15 

Haswell  v.  Vermont  Central  Railw. 

367 
Hatch  v.  Vermont  Central  Railw.  234, 
265,  294,  306,  333,  343 
Hattersley  v.  Shelburne  50,  618 

Hawkes  v.  Eastern  Counties  Railw.  26, 
33,  35,  37 
Hawkins,  ex  parte  376 

Hawley  v.  Baltimore  &  Ohio  Railw. 

520,531 
Hawthorne  v.  Newcastle-upon-Tyne 

&  N.  Shields  Railw.  422 

Hay  v.  Cohoes  Company  287,  511 

Hayden  v.  Cabot  535 

v.  Noyes  89 

Hayes  v.  Shackford  243 

v.  Western  Railw.  520,  523 

Hayne  v.  Beauchamp  65,  108 

Haynes  v.  Palmer  185 

v.  Thomas  310 

Hayward  v.  Mayor  of  New  York     253 

Hazen  v.  Boston  &  Maine  Railw.    243, 

253, 516 
Healey  v.  Story  568 

Heane  v.  Rogers  10 

Heart  v.  State  Bank  110,  116 

Heaston  v.  Cincinnati  &  F.  W.  R.    66, 

67 
v.  Cincinnati  &  C.  Railw. 

147,  149 
Heathcote  v.  North  Staffordshire 

Railw.  45 

Hedges  v.  Metropolitan  Railw.         359 
Hemingway  v.  Fernandes  2 

Hennessey  v.  Farrell  409 

Henry    v.    Alleghany    &    Pittsb. 

Bridge  Co.  294,  306 

v.  Dubuque  &  Pacific  Railw. 

252,266,  275,  285,  485,  489 

i'.  Rut.  &  Bur.  Railw.  571 

v.  Vermilion  Railw.     158,  170, 

187,  207 

v.  Vermont  Central  Railw.  296 

Henderson  &  Nashville  Railw.  v. 

Leavell  172 

Henderson   v.    Australian   Royal 
Mail  Steam  Nav.  Co.  598 


Henderson  v.  Mayor  of  New  Or- 
leans 282 
v.  Railw.  160,  621 
Hentz  v.  Long  Island  Railw.  307 
Herbein  v.  The  Railroad  277 
Herkimer  M.  &  H.  Co.  v.  Small  163 
Herrick  v.  Vermont  Central  Railw. 

411,416,  423,  431 
Herring  v.  Wil.  &  R.  Railw.  548 

Hersey  v.  Merrimac  Mutual  Fire 

Insurance  Co.  276 

Hertford  v.  Boore  226 

Hester  v.  Memphis  &  Charleston 

Railw.  201 

Hetherington  v.  Hayden  249 

Hewitt  v.  Price  119 

Hewson  v.  London  &  S.  W.  Railw.  355 
Hibbard   v.   New   York    &    Erie 

Railw.  100,  102 

Hibble white  v.  McMorine        118,119, 

124,  127 
Hibernia  Turnpike  Co.  v.  Hender- 
son 187 
Hickock  v.  Pittsburgh  233 
Hicks  v.  Launceston.  68 
Higgins  v.  Livingstone  570 
Highland  Turnpike  Co.  v.  McKean 

67,  107,  187 
Hightower  v.  Thornton  163,  170 

Higley  v.  Lancaster  &  Y.  Railw.      358 
Hilcoat  v .  Archbishops  of  Canter- 
bury &  York  348 
Hill  v.  Great  N.  Railw.  358 
v.    Manchester    Waterworks 

Co.  575 

v.  Mohawk  &  H.  Railw.  254 

v.  South  Staffordshire  Railw.    597 

v.  Western  Vermont  Railw.     249 

Hilles  v.  Parish  58 

Hilliard  v.  Goold         92,  103,  105,  557 

v.  Richardson  508 

Hilton  v.  Giraud  109 

Hitchcock  v.  Danbury  &  Norwalk 

Railw.  393 

v.  Giddings  142 

Hoagland  v.  Bell  157 

v.  Cin.  &  F.  W.  Railw.     162 

Hoare,  ex  parte  138,617 

Hobbitt  v.  London  &  N.  W.  Railw.  506 

Hochster  v.  De  Latour  412 

Hodges  v.  Rut.  &  Bur.  Railw.  571 

Hodgkinson  v.  National  Live  Stock 

Ins.  Co.  583 

Hodson  v.  Davies  129 

Hogg  v.  Zanesville  Canal  Co.  326 

Holcomb  v.  N.  H.  D.  B.  Co.  84 

Holden  v.  Rut.  &  Bur.  Railw.  492,  493 
Hole  v.  Barlow  339 


lxii 


TABLE   OF   CASES. 


Hole  v.  Sittingbourne  &  Shecrness 

Eailw.  633 

Holliday  v.  St.  Leonard's  Shore- 
ditch  606 
Hollister  v.  Union  Co.  296 
Holmes  v.  Gilliland  67 
v.  Higgins  13 
Homersham    v.    Wolverhampton 

Waterworks  412,  597 

Honner  v.  Illinois  Central  Railw.    520, 

531 
Hooker  v.  N.  H.  &  N.  Y.  Railw.     290, 

296 
v.  N.  H.  &  Northampton 

Co.  333 

v.  Utica  &  Minden  Turn- 
pike 251 
Hop  &  Malt  Company  139 
Hopkins  v.  Prescott                            578 
Horn  v.  Atlantic  &  St.  Lawrence 

Railw.  467,  491 

Hornaday  v.  Ind.  &  111.   Central 

Railw.  202 

Horner's  Estate,  in  re  219 

Horton  v.  Westminster  Improve- 
ment Comm.  575 
Hortsman   v.    Lexington    &    Cov. 

Railw.  220 

Hotchkiss  v.  Auburn  &  Rochester 

Railw.  271 

Housatonic  Railw.  v.  Waterbury     469 
Howard  v.  Wilmington  &  Susque- 

hannah  Railw.  408 

Howden  v.  Simpson  24,  25 

Howe  v.  Starkweather  110 

Hubbard  v.  Chappel  664 

v.  Russell  334 

Huddersfield  Canal  Co.  v.  Buckley 

165,  182,  184 
Hudson  v.  Carman  66,  67,  85 

&  Delaware  Canal  Co.  v. 

N.  Y.  &  Erie  Railw.     258 
River  Railw.  v.  Outwater 

284,  369 
Hueston  v.  Eaton  &  H.  Railw.  338 
Hugh  v.  N.  O.  &  C.  Railw.  526 

Hughes  v.    Chester   &  Holyhead 
Railw.  400 

v.  Parker  43 

v.  Providence  &  Worces- 
ter Railw.  300,  398 
Hull  Co.  v.  Wellesley  15,  167 
Humble  v.  Langston         113,  122,  123, 
127,  132,134,135,136,137 
v.  Mitchell                    109,  130 
Humfrey  v.  Dale  128 
Hunt  v.  Adams  124 
v.  Gunn  15 


Hunt  v.   Shrewsbury   &   Chester 
Railw.  195 

v.  Test  579 

Hurd  v.  Rut.  &  Bur.  Railw.  489 

Hutchins,  Adm'r.  v.  State  Bank      110 
Hutchinson  v.  Manchester,  Bury,  & 

Rossendale  Railw.  369 
v.  York  &  Newcastle 

Railw.  507 

v.  York,  Newcastle  & 

Berwick  R.    520,  531 
Hutton  v.  London  &  S.  W.  Railw. 

218,  372 
Huyett  v.  PhiL  &  Read.  Railw.  289, 455 
Hyam,  ex  parte  156 

Hyatt  v.  Whipple  67 

I. 

111.  Central  Railw.  v.  Buckner         546 
Ulidge  v.  Goodwin  631 

Illinois  &  Michigan  Canal  i\  Chica- 
go &  R.  I.  Railw.  261 
Illinois  &  Wisconsin  Railw.  v.  Van 

Horn  274,  277 

Blinois  Central  Railw.  v.  Davney    515 
v.  Dickerson  498 

v.  Goodwin  480 

v.  Phelps        480,  498 
v.  Reedy         500,  553 
v.  Swearingen      480, 
496,498 
v.  United  States  231, 
499 
Illinois  Grand  T.  Railw.  v.  Cook      392 
Illinois  River  Railw.  v.  Beers  194 

v.  Casey  73 

v.  Zimmer  73 

Imlay  v.  Union  Branch  Railw.         309 
Imperial  Gas  Light  Co.  v.  Broad- 
bent  338,  339 
Mercantile  Credit  Asso- 
ciation, in  re  76 
Ind.,  &c.  Railw.  v.  Elliott          501,  502 
v.  Meek                   493 
v.  Moore                  501 
v.  Snelling               501 
v.  Wright                  497 
Ind.  &  Cin.  Railw.  v.  Guard             498 
v.  Jewett              85 
v.  Kercheval      493 
v.  Kinney           499 
v.  McKinney      498 
v.  Oestel             497 
Ind.  &  Cincin.  Railw.  v.  Caldwell    466 
Ind.  &  Madison  Railw.  v.  Solomon  604 
Ind.  Central  Railw.  v.  Hunter  263,  265 
v.  Leamon        496 


TABLE   OF   CASES. 


lxiii 


Ind.,  Pittsb.    &    Cleve.   Railw.  v. 

Tritt  497 

Indian.  Railw.  v.  Gapen  493 

Indiana   &   Ebensburg    Turnpike 

Co.  v.  Phillips  195 

Indiana,  &c.  Railw.  v.  Fisher  494 

v.,  Kercheval    494 
Indiana  Central  Railw.  v.  Moore     498 
v.  Oakes    271, 
338 
Indianapolis  Railw.  v.  Adkins  498 

v.  Klein  523,  531 
v.  Love  523,  531 
v.  SpaiT  478 

v.  Williams       478 
Indianapolis  &  C.  Railw.  v.  Kin- 
ney 468 
v.  Meek  504 
v.  Townsend   493 
v.  Wharton     479 
Inge  v.  Birmingham  131 
Inglis  v.  Great  Northern  Railw.   165, 

572 

Ins.  Co.  v.  Smith  116 

Irish  Peat  Co.  v.  Phillips  15 

Irvin  v.  Turnpike  Co.  198,  257 

Irvine  v.  Swann  194 

i?.  Turnpike  Co.  194 

v.  Walker  194 

Isbell  v.  N.  Y.  &  N.  H.  Railw.        501, 

503,  548,  631,  632 

Isham  v.  Ben.  Iron  Co.  110 


Jackson  v.  Cocker  111,  132,  133 

v.  Lamphire  237 

v.  North  Wales  Railw.        431 
v.  Rutland  &  Burlington 

Railw.  251,466,499 

Jacob  v.  Louisville  264 

Jacobs  v.  Peterborough  &  Shirley 

Railw.  225 

Jacques  v.  Chambers         132,  149,  150 
James  v.  Portsmouth  &  Concord 

Railw.  442 

v.  Woodruff  144 

River  &  Kanawha  Co.  v. 

Turner  263 

Jameson  v.  Ware  440 

Janesville  v.  Milw.  &  Miss.  Railw.   313 

Jarrett  v.  Kennedy  12 

Jefferson  Railw.  v.  Applegate  493 

v.  Dougherty  493 

Jencks  v.  Coleman  101 

Jenkins  v.  Union  Turnpike  Co.        187 

Jennings  v.  Broughton  212 


Jennings  v.  Great  Western  Railw.  105 

Jewell  v.  Stead  395 

Joel  v.  Morrison  514 

Johns  v.  Johns  110 

Johnson,  ex  parte  557 

v.  A.  &  St.  L.  Railw.         290 

v.  Anderson  300 

v.  Bank  of  United  States  124 

v.  Hudson  River  Railw.     545 

v.      Shrewsbury     &    B. 

Railw.  589 

v.    Wabash    &    M.    V. 

Railw.  205 

Johnston  v.  S.  W.  R.  R.  Bank  65 

Joliet  &  N.  I.  Railw.  v.  Jones  461 

Jones  v.  Bird  607 

v.  Chamberlain  443 

v.  Mersey  Board  606 

V.  Waltham  535 

Josephs  v.  Pebrer  133 

Joy  v.  Jackson  &  Michigan  Plank- 
Road  Co.  70 
Jubb  v.  Hull  Dock  Co.                      348 
Judson    v.    New    York    &    New 

Haven  Railw.  400 

Junction  Railw.  v.  Reeve  205,576 


K. 

K.  P.  &  R.  Railw.  v.  Marsh 
Kartright  v.  Buffalo  Commercial 

Bank 
Kean  v.  Johnson 
Keech  v.  Bait.  &  Wash 


392 


144 
73 

Railw.  67, 
477,  628 
520 
490,  491 

277 


Keegan  v.  Western  Railw 
Keith  v.  Cheshire  Railw. 
Kellogg  v.  Krauser 
Kelly  v.  Mayor  of  New  York  507 

Kemp  v.  London  &  Br.  Railw.         360 
Kerns  v.  O'Reilley  416 

Kennard  v.  Burton  547 

Kennebec    &  Portland  Railw.  v. 
Kendall  164 

v.  Waters  159 
Kennedy  v.  Colton  205 

Kennett  Nav.  Co.  v.  Withington     337 
Kennett's  Petition  295 

Kenosha,  Rockford,  &  Rock  Island 

Railw.  v.  Marsh  198 

Kent  v.  New  York  Central  Railw. 

446,  587 
Keppell  v.  Bailey  2 

Kerr,  Matter  of  259 

Kerridge  v.  Hesse  9 

Kerwhacker  v.  C.  C.  &  C.  Railw.  490, 

548,  631 


Ixiv 


TABLE   OF   CASES. 


Kerwin,  ex  parte  124 

Kid  well  v.  Bait.  &  Ohio  Railw.       416, 

417 
Kidwelly  Canal  Co.  v.  Raby  7,  203 
Kimball  V.  Cocheco  Railw.  349 

v.  Kennebec  &  Portland 

Railw.  280 

v.  White   Water  Valley 

Canal  336 

Kin"-  v.  Boston  &  Worcester  Railw. 

520 
v.  Bristol  Dock  Co.  344 

v.  Chipping  Norton  109 

v.  Commissioners  of  Manches- 
ter 360 
v.  Commissioners  of  Thames 

&  Isis  344 

v.  Commissioners  under  Lon- 
don Dock  Acts  376 
v.Elliott                      64,108,190 
v.  Great  Mario w  84 
v.  Hungerford  Market  Co.      360 
v.  Langhorn                           77,  82 
v.  Leeds  &  Selby  Railw.          344 
v.  London  Dock  Co.                 344 
v.  Pagham                                 306 
v.  Pasmore  69 
i'.  Pease                                    454 
V  Pedley                                  508 
v.  Theodorick  77 
v .  Whitaker                                84 
v.  Winwick                                  84 
v.  Witham  Nav.  Co.                376 
v.  Wycombe  Railw.         305,  359 
Kirk  v.  Bell                                        563 
v.  Guardians     of    Bromley 
Union                                               411 
Kish  v.  Venezuela  Railw.                 566 
Klein    v.    Alton    &    Sangamon 

Railw.  163,  188 

Knapp  t'.  L.  C.  &  Dover  Railw.       358 

Knight  v.  Abert  467 

v.  Barber  109 

v.  Carrolton  Railw.  391 

v.  Fox  506 

v.  Toledo  &  Wabash  Railw.  498 

Knorr  v.  Germantown  Valley  Railw. 

336 
Koch  v.  Dauphin  252 

Kramer  v.  Cleve.  &  Pittsb.  Railw.    274 
Kyle  v.  Auburn  &  Roch.  Railw.      291, 

483 


L.  &  Y.  Railw.  v.  Evans  343,  372 

Lackland  v.  North  Missouri  Railw.  314 
Lade  v.  Shepherd  303 


Lafayette  &  Ind.  Railw.  v.  Shriner 

468,  469,  492,  499 
Lafayette  Plank-Road  Co.  v.  New 

Albany,  &c.  Railw.        289,  293,  346 
Laird  v.  Birkenhead  Railw.  227 

Lake  v.  Butler  395 

v.  Duke  of  Argyll  14 

Lake  Erie,  &c.  Railw.  v.  Eckler      446 
Lake  Ontario,  A.  &  N.  Y.  Railw. 

u.  Mason  147,  190 

Lamert  v.  Heath  128 

LAmoureux  v.  Gould  204 

Lamprell  v.  Billericay  Union    597,  599 

600,  601 
Lancashire  &  Y.  Railw.  v.  Evans     343 
v.  East  L.  Railw.    612 
Lancaster  &  Carlisle  Railw.  v.  Ma- 

ryport  &  Carlisle  Railw.  323 

Lancaster  Canal  Co.  v.  Parnaby      603 
Lane,  ex  parte  145,  573 

Langley  v.  Boston  &  Maine  Railw.  592 
Langlois  v.  Buffalo  &  Rochester 

Railw.  492,  523 

Lauderbrun  v.  Duffy  289 

Laugham  v.  Great  Northern  Railw. 

368,  372 
Laugher  v.  Pointer  506,  508 

Lawrence  v.  Great  N.  Railw.  289,  334, 

343 
v.  Knowles  127 

Lawrenceburg    &    Upper    Miss. 

Railw.  v.  Montgomery  541 

Lawton  v.  Fitchburg  Railw.  485 

Leach  v,  Fobes  131 

Lead  Mining  Co.  v.  Merryweather  585 
Leame  v.  Bray  515 

Leavitt  v.  Towle  300 

Lebanon  v.  Olcott  337 

Lee  v.  Milner  375 

Leech  v.  Caldwell  416 

Leeds  &  T.  Railw.  v.  Fearnley         191 
Lefever  v.  Lefever  139 

Legg  v.  Belfast  &  Bellamy  Railw.    350 
Lehigh  Valley  Railw.  v.  Lazarus     292 
v.  Trone       289, 
331 
Leigh  v.  Hind  394 

Lemmex  v.  Vermont  Central  Railw. 

290 
Leominster  Canal  Co.  v.  Shrews- 
bury &  Hereford  Railw.  593 
Leonardsville  Bank  v.  Willard  67 
Lesher  v.  Wabash  Nav.  Co.      243,  247 
Levering  v.  Railway  Co.                    240 
Lewey's  Island  RaUw.  v.  Bolton      166 
Lewis  v.  Billing  6 
v.  Robertson                             108 
v.  Smith                                      14 


TABLE   OF   CASES. 


lxv 


Lewis  v.   Wilm.    &    Manchester 
Railw.  350 

Lewiston  v.  County  Commissioners  243 
v.  Junction  Railw.  337 

Lexington  &  Ohio  Railw.  v.  Ap- 
plegate  307 

Lexington  &  Ohio  Railw.  v.  Orms- 
by  225 

Lexington     &    West    Cambridge 
Railw.  v.  Chandler       163,166,175, 

186 
v.  Staples  167 

Lichfield  v.  Simpson  338 

Lincoln  v.  Saratoga  &  Schenecta- 
dy Railw.  273 

Lincoln  &  K.  Bank  v.  Richardson 


Lind  v.  Isle  of  Wight  Ferry 
Lindsay  v.  Commissioners 
Lindus  v.  Melrose 
Linfield  v.  Old  Colony  Railw. 


195 
358 
286 
568 
544, 
612 

Lister  v.  Labley  283 

Little  v.  Newport,  A.  &  H.  Railw.  243, 

389 

Little  Miami  Railw.  v.  Collett  264 

v.  Naylor  265,  391 

v.  Stevens        523, 

531 

Littleton    Manufacturing    Co.    v. 

Parker  176 

Livermore  v.  Jamaica  265,  274 

Livingston  v.  Lynch  194 

v.  Mayor  of  New  York  300 


Lloyd  v.  Mayor  of  New  York 
Loch  v.  Venables 

514 
151 

Loder  v.  Kekule 

131 

Lodge  No.  1  v.  Lodge  No.  1 

73 

Logan  v.  Courtown 

186 

Lond.,  B.  &  S.  C.  Railw.  v.  L.  &  S 

W.  &  Portsmouth  Railw. 

589 

Londesborough,  ex  parte 

London  &  B.  Railw.  v.  Fairclough 

12 

118,  125, 

165 

v.  Grand  Junction 

Canal  Co.    338, 

377 

v.  Winter 

602 

London   &   Blackwall   Railw.   v. 
Board  of  Works 

280 

r.  Letts 

344 

London  &  Brighton  Railw.  v.  Wil- 

son 

185 

London  &  M.  W.  Railw.  v.  McMi- 

chael 

179 

London  &  N.  W.  Railw.  v.  Ack- 

royd 
v.  Bradley  342 
v.  Skerton 

223 
372 

404 

vol.  i.                e 

London  cSc  N.  W.  Railw.  v.  Smith    372 
London  &  S.  W.  Railw.,  ex  parte 

Stevens  367 

v.  Southeastern  Railw.     589 
London  Dock  Co.  v.  Knebell  41 

v.  Sinnott  602 

London  Grand  J.  Railw.  v.  Free- 
man 155,  181 
v.  Graham     6,  155,  181 
London   Insurance   v.  London  & 

Westminster  Insurance  Co.  62 

Londonderry  &  Coleraine  Railw.     146 
Long  Island  Railw.,  Matter  of    81,  92, 

155,487 
Lord  v.  Wormwood  500 

Lord-Belhaven's  Case  561 

Lord   James   Stuart  v.  London  & 

Northwestern  Railw.     28,  36,  39,  40 
Lord   Petre  v.  Eastern   Counties 

Railw.  26, 48 

Lord  Shrewsbury  v.  North  Staf- 
fordshire Railw.  16 
Lorymer  v.  Smith                                118 
Lou.  &  Frankfort  Railw.  v.  Ballard 

477,504 
Louisville,  Cincinnati,  &  Charleston 

Railw.  v.  Letson  72 

Louisville  &  Frankfort  Railw.  v. 

Milton  469,  486 

Louisville  &  Nashville  Branch  Turn- 
pike  Co.  v.  Nashville  &  Ken- 
tucky Turnpike  Co.  381 
Louisville  &  Nashville  Railw.  v. 

Collins  527 

v.  Thompson     220,  263 

Louisville  Railw.  v.  Chappel  286 

Lovering  v.  Railw.  254 

Low  v.  Conn.  &  Pass.  Railw.  43 

v.  Galena  &  Chicago  Union 

Railw.  245 

Lowber  v.  Mayor  of  New  York        580 

Lowe  v.  E.  &  K.  Railw.  206 

v.  London  &  N.  W.  Railw.    439, 

597 

Lowell  v.  Boston  &  Lowell  Railw. 

507,  516,  535 
Ludlow  v.  New  York  &  Harlem 

Railw.  221 

Lund,  ex  parte  156 

v.  Midland  Railw.  236 

Lunt  v.  London  &  N.  W.  Railw.      552 
Lycoming  County  v.  Gamble  450 

Lyman   v.   Boston   &   Worcester 

Railw.  455 

v.  Norwich  University         551 
Lyndsay  v.  Conn.  &  Pass.  Rivers 

Railw.  4  73,4  74 

Lyon  v.  Jerome  243,  282 


lxvi 


TABLE    OF    CASES. 


M. 

M.  &  M.  Railw.  v.  Hodge  5G9 

M.  &  M.  Savings  Co.  v.  O.  F.  Hall 

Ass.  572 

Macedon  &  Bristol  Plank-Road  v. 

Lapliam  204 

Macedon  Plank-Road  v.  Lapham     197 
MacGregor  v.  Dover  &  Deal  Railw.  28, 
33,44,  197 
Macham  v.  Fitchburg  Railw.  364 

Mackey  v.   New   York    Central 

Railw.  546 

Maclaren  v.  Stainton  151 

Macon  v.  Macon  &  Western  Railw.  238 
Macon  &  Western  Railw.  v.  Davis 

472,  545 

v.  McConnell  346 

Mad.  &  Ind.  Railw.  v.  Kane  489 

Maddick  v.  Marshall  14 

Madison  &  I.  Railw.  v.  Bacon  520, 

531 
Magetti  v.  N.  York  &  Harlem  Railw. 

536 
Mahon  v.  Utica  &  Sch.  Railw.  299 

Maltby  v.  N.  W.  Va.  Railw.  166 

Manchester  &  Lawrence  Railw.  v. 

Fisk  449 

Manchester   &   Leeds    Railw.   v. 

Reginam  405 

Manchester,    Sh.    &    Lincolnshire 
Railw.  v.  Great  Northern  Railw.  250 
v.  Wallis  467,499 

Mangles  v.  Grand  Collier  Dock  Co. 

155,  158,  187 
Manley  v.   St.    Helen's    Canal   & 

Railw.  Co.  533 

Mann  v.  Cooke  155,  163,  207 

v.  Currie  155,  163,  182 

v.  Great  S.  &  W.  Railw.       267, 

336,  490 

v.  Pentz  158,163,170,184 

Manning  v.  Commissioners  under 

W.I.  Dock  Act         376 
v.  Eastern  Counties  Railw. 

376 
Manser  v.  N.  &  E.  Railw.  338 

Mansfield   &    Sandusky  Railw.  v. 

Yeeder  416 

March  v.  C.  &  P.  Railw.  333 

Marine  Bank  of  Chicago  v.  Ogden 

409 
Markham  v.  Brown  94 

Markwell,  ex  parte  13 

Marlborough  Man.  Co.  v.  Smith     114, 

116,  557 
Marquis    of    Salisbury   v.    Great 
Northern  Railw.  311,  358 


Marriage    v.    Eastern     Counties 

Railw.  356 

Marsh  v.  N.  Y.  &  Erie  Railw.  469 

Marshall  v.  Bait.  &  Ohio  Railw.       578 
v.  Queensborough  576 

v.  Stuart  525 

Martin,  ex  parte  282 

Mason   v.   Brooklyn    &   Newtown 

Railw.  393 

v.   Kennebec   &  Portland 

Railw.      ■  289,  336 

Mass.  Iron  Co.  v.  Hooper  116 

Masterton  v.  Mayor  of  Brooklyn  413 
Maudslay,  ex  parte  13 

Maund  v.  Monmouthshire  Canal  Co.  513 
Maunsell  v.  M.  Great  Western  (Ire- 
land) Railw.  50,  617 
May  v.  Burdett  460 
Mayor  v.  Randolph  306 
Mayor   and    Burgesses    of   Lynn 

Regis  61 

Mayor,  &c.  of  City  of  New  York  v. 

Second  Avenue  Railw.  222 

Mayor,  &c.  of  Pittsburg  v.  Penn. 

Railw.  255 

Mayor  of  Ludlow  v.  Charlton  410, 

596,599,600 
Mayor  of  Lynn  v.  Denton  216 

Mayor  of  New  York  v.  Bailey  507 

v.  Furze  334 

Mayor  of    Norwich    v.    Norfolk 

Railw.  36,  614 

Mavor  of  Southampton  v.  Graves  215 
McAllister  v.  Ind.  &  Cin.  Railw.  1 73 
McArdle  v.  Irish  Iodine  Co.  600 

McAulay    v.    Western    Vermont 

Railw.  285 

McCall  v.  Byram  Manuf.  Co.  58 

v.  Chamberlain  478 

McClasky  v.  Grand  Rapids  &  Ind. 

Railw.  162 

McCluer  v.   Manchester   &  Law- 
rence Railw.  591 
McClusky  v.  Cromwell                      446 
McCool  v.  Galena  &  Chicago  Union 

Railw.  504 

McCormack    v.    Terre    Haute   & 

Richmond  Railw.  337 

McCormick  v.  Lafayette  283 

McCready  v.  Railw.  Co.  455 

McCullough  v.  Annapolis  &  Elk 

Ridge  85 

McCullough  v.  Maryland  56 

McDaniels  v.  Flower  Brook  Man. 

Co.  79 

McDougall  v.  Jersey  Imperial  Ho- 
tel Co.  64,  143 
McDowell  v.  N.  Y.  Central  Railw.   495 


TABLE   OF   CASES. 


lxvii 


McElroy    v.    Nashua    &    Lowell 

Railw.  603 

McEwen  v.  Woods  128 

McFarland  v.  Orange  &  Newark 

Horse-Car  Railw.  "  393 

McGatrick  v.  Wason  526 

McGinity  v.  Mayor  of  New  York 

606 
McGregor  v.  Official  Manager  of 

Deal  &  Dover  Railw.  615 

Mclntire  v.  State  263 

Mcintosh  v.  Great  Western  Railw.  432 
v.      Midland     Counties 
Railw.  422 

McKinley  v.  Ohio,  &c.  Railw.  497 

McLaughlin  v.   Charlotte  &.  S.  C. 

Railw.  306,  336 

McLaughlin  v.  D.  &  M.  Railw.  68,  211 
v.  Pry  or  516 

McMahan  v.  Morrison  198 

McMahon  v.  Cincinnati  Railw.  265 

McManus  v.  Carmichael  331 

v.  Crickett  511,512 

McMasters  v.  Commonwealth  265 

McMichael  v.   London  &  N.  W. 

Railw.  191 

McMillan  v.  Maysville  &  Lexing- 
ton Railw.  164,  172 
McMillan  v.  Railroad  Co.  520 
McMillan   v.    Saratoga   &   Wash. 

Railw.        .  492,  521,  526 

McMillan  v.  Scott  134 

McRae  v.  Russell  188 

McRee  v.  Wilmington  &  Raleigh 

Railw.  258 

Meacham  v.  Fitchburg  Railw.  262 

Mead  v.  Keeler  67,  574 

Meason's  Estate  109 

Meikel  v.  German  Savings  Fund 

Society  663 

Mellen  v.  Western  Railw.  333 

Mellors  v.  Shaw  521,  531 

Memphis  &  Charleston  Railw.  v. 

Payne  285 

Memphis   &  Charlotte   Railw.  v. 

Bibb  475 

Memphis  Railw.  v.  Wilcox  427 

Mercer  v.  McWilliams  242,  283 

v.  Whall  268 

Mercer  County  v.  Pittsburg  &  Erie 

Railw.  443 

Merrihew  v.  Milwaukie  &  Mississip- 
pi Railw.  103 
Merrill  v.  Ithaca  &  Osweso  Railw. 

444 
Merritt  v.  Northern  Railw.  220 

Mersey  Docks  &  Harbor  Board  v. 
Penhallow  606 


Met.  Railw.  v.  Woodhouse  358 

Metcalfe  v.  Hetherington  606 

Methodist    Episcopal   Church  v. 

Jacques  134 

Mexican  &  South  Am.  Co.  in  re  156 
Meyer  v.  North  Missouri  Railw.  478 
Michigan,  &c.  Railw.  v.  Shannon  494 
Micklethwait  v.  Winter  266 

Middlesex  Turnpike  Co.  v.  Lock      194 
v.  Swan    162 
Middletown  Bank  v.  Magi  11  114 

Midland  Counties  Railw.  v.  Oswin  219, 

376 

v.  Gordon    5,  7,  155 

Midland  Railw.  v.  Day  kin  467 

Miers  v.  Z.  &  M.  T.  Co.  1 70 

Mifflin  v.  Harrisburg,  Portsmouth, 

M.  &  L.  Railw.  306 

Mil.  &  Miss.  Railw.  v.  Eble  489 

Milburn  v.  City  of  Cedar  Rapids  312 
Miles  v.  Bough  148,572 

Milhau  v.  Sharp  234,  307 

Mill-Dam  Co.  v.  Dane  197 

Miller    v.    Auburn    &     Syracuse 

Railw.  220,  299 

Miller  v.  Ewer  58 

v.  Illinois  Central  Railw.  & 
Schuyler  133 

Miller  v.  Pittsburg  &  Connellsville 

Railw.  175,  208 

Miller  v.  Second  Jefferson  Build- 
ing Association  185 
Milligan  v .  Wedge                             506 
Milner  v.  Field                                    435 
Milnes  v.  Gerry                          224,  435 
Milnor  v.  Georgia  Railw.  &  Bank- 
ing Co.                            416 
i'.  New  Jersey  Railw.            261 
v.  Railway  Companies          326 
Milwaukie  &  Miss.  Railw.  v.  Eble  265, 

485 
Mims  v.  Macon  &  W.  Railw.  363 

Miners'  Bank  v.  United  States  56 

Minor  v.  Mechanics'  Bank  of  Alex- 
andria 63 
Minot  v.  Curtis                                      61 
Miss.  &  Mo.  Railw.  v.  Byington       255 
Miss.  &  Tenn.  Railw.  v.  Harris         108 
Miss.  O.  &  R.  Railw.  v.  Cross           392 
Mitchell  v.  Alestree                           453 
v.  Crassweller                       515 
v.  Newhall                           128 
v.  Rockland                          567 
v.  Rome  Railw.           188,  194 
Mixer's  Case,  in  re,  Royal  British 

Bank  565 

Mohawk  &  Hudson  Railw.,  Matter 
of  82 


Ixviii 


TABLE   OF   CASES. 


Mohawk    Bridge    Co.   v.   Utica  & 

Sch.  Railw.  258 

Mold  v.  Wheatcraft  227,  352 

Monchet  v.  G.  W.  Railw.  372 

Money  v.  Maclcod  578 

Moneypenny  v.  Hartland  9 

Monkland  &  Kir.  Railw.  v'.  Dixon    378 
Monmouth  Canal  Co.  v.  Harford  3 

Monongahela    Navigation    Co.    v. 

Coons  232,  234,  294 

Montgomery  &  West  Point  Railw. 

v.  Varner  274 

Monypenny  v.  Monypenny,  41 

Moore  v.  Great  Southern  &  West- 

-    ern  Railw.  341 

v.  Hudson  River  Railw.     439,424 

v.  New  Albany  &  Salem  Railw.  199 

Moorhead  v.  Little  Miami  Railw.    237, 

391 
Morgan  v.  Birnie  417 

v.  King  332 

v.  New  York  &  Albany 

Railw.  1 70 

Morris  &  Essex  Railw.  v.  Blair        323 
v.  Newark  296,  307 

Morris   Canal  &  Banking  Co.  v. 

Ryerson  346 

v.  Townsend  87 

Morrison  v.  Steam  Nav.  Co.  548 

Morse,  Petitioner  267 

v.    Auburn    &    Syracuse 

Railw.  515, 632 

v.  Rut.  &  Bur.  Railw.  499 

Morss  v.  Boston  &  Maine  Railw.      489 
Mortimer  v.  Mc  Callan  119 

v.  South  Wales  Railw.      374 
Morton  v.  Barrett  134 

Moshier  v.  Utica  &  Sch.  Railw.  474 
Mount  Washington  Road  Co.,  Mat- 
ter of  265 
Mowatt,  ex  parte  1 2 
v.  Londesborough  12 
Mozley  v.  Alston  86,  592 
Mumma  v.  Potomac  Co.  1 70 
Munger  v.  Tonawanda  Railw.  252,  254, 

500 
Munn  v.  Barnum  127 

Munt   v.    Shrewsbury   &   Chester 

Railw.  197 

Murch  v.  Concord  Railw.  590,  604 

Murphy  v.  City  of  Chicago        223,  537 
Murray  v.  De  Rottenham  134 

v.  Railroad  Co.     398,  472,  554 
v.  South  Car.  Railw.    520,  530 
Mutual  Savings  Bank  v.  Meriden 

Agency  Co.  576 

Myers  v.  Myers  134 

v.  Peristal  109 


N. 


N.  B.  &  C.  L.  Co.  v.  Muggeridge,  120, 

565 
N.  C.  Railw.  v.  Leach  159 

N.   Hampshire   Central  Railw.   v. 

Johnson  1 75 

N.  O.  &  C.  Railw.  v.  Second  Mu- 
nicipality of  New  Orleans  391 
N.  Penn.  Railw.  v.  Rehman  248 
N.  Y.  &  N.  H.  Railw.  v.  Ketchum   571 
Narragansett     Bank    v.    Atlantic 

Silk  Co.  216 

Nashville  &  C.  Railw.  v.  Cowardin  392 
Nashville  &  Ch.  Railw.  v.  Peacock  492 
Nashville  Railw.  v.  Cowardin  247 

v.  Dickerson  263 

Nason  v.  Woonsocket  Union  Railw. 

291 
Nathan  v.  Whitlock  169,  170 

Natusch  v.  Irving  194,  195 

Neal  v.  Pittsburgh  .  &  Connelsville 

Railw.  241 

Nellis  v.  New  York  Central  Railw.  450 
Nelson  v.  Eaton  576 

v.  Vt.  &  Canada  Railw.        590 
Nesbitt  v.  L.  C.  &  C.  Railw.     413,  417 
Neuse  River  Nav.  Co.  v.  Commis- 
sioners of  Newbern  210 
Neville  v.  Wilkinson                      18,  46 
Nevins  v.  Henderson  14 
Nevitt  v.  Bank  of  Port  Gibson         1 70 
New  Albany,  &c.  Railw.  v.  Higman  296 
v.  Huff               296 
v.  McNamara    468 
v.  Pace               496 
New  Albany  &  Salem  Railw.  v. 

Conelly  337 

v.  Maiden  496 

v.  Pickens  164 

v.  Tilton  496 

New  Albany  Railw.  v.  O'Daily         314 

New    Bedford    Turnpike    Co.    v. 

Adams  161 

New  Haurpshire  Central  Railw.  v. 

Johnson  164 

New  Jersey  Railw.  v.  Suydan  268 

New  London  v.  Brainard  237 

New  Orleans  &  O.  Railw.  v.  Lea  217 
New  Orleans,  &c.  Railw.  v.  Harris  72 
New  Orleans,  Jackson,  &c.  Railw. 

v.  Harris  72 

New  River  Co.  v.  Johnson  341 

New  York  &  Erie  Railw.  v.  Skin- 
ner     470,  486,  488,  489,  500 
v.  Young  247 

New  York  Central  Railw.  hi  re       254 
v.  Marvin  280 


TABLE   OF   CASES. 


lxix 


New  York  Exchange  Co.  v.DeWolf  160 
Newbury  v.  Conn.  &  "Pass.  Rivers 

Railw.  535 

Newburyport  Bridge  Co.  v.  Story    162 
Newcastle,    &c.    Turnpike    Co.   v. 

North  Staffordshire  Railw.  404 

Newcastle   &   R.   Railw.  v.  P.  & 

Ind.  Railw.  256 

Newport  Mech.  Co.  v.  Starbird  61 

Newry   &   Enniskillen    Railw.    v. 

Coombe  192 

v.  Edmunds     147,  157 

Newry  W.  R.  Railw.  v.  Moss  156 

Newton  v.  Belcher  10 

v.  Liddiard  10 

Niagara    Falls   &    Lake    Ontario 

Railw.  v.  Hotchkiss  238 

Nicholson  v.  New  York   &  New 

Haven  Railw.  269,  300,  308 

Nicklin  v.  Williams  551 

Nicol,  ex  parte,  in  re  Royal  British 

Bank  141 

Nicol  v.  N.  Y.  &  Erie  Railw.    252,  254 
Nixon  v.  Brownlow  193 

v.  Taff  Yale  Railw.        412,  422 
Norris  v.  Androscoggin  Railw.  475 

v.  Cooper  8 

v.  Irish  Land  Co.  149 

v.  Vermont  Central  Railw.  220, 
405 
North  American  Colonial  Associa- 
tion of  Ireland  v.  Bentley  146 
North  British  Railw.  v.  Tod  384 
North  Carolina  Railw.  v.  Leach  192,  201 
North  Eastern  Railw.  v.  Elliott       222, 

297,  298 
North  Mo.  Railw.  v.  Gott         236,  280 
v.  Lackland  236 

v.  Winkler  172 

North  Penn.  Railw.  v.  Rehman        499 
v.  Robinson       632 
North  Shields  Quay  Co.  v.  David- 
son 158 
North  Staffordshire  Railw.  v.  Dale  399 
v.  Landon  363 
v.  Wood      364 
North  W.  Railw.  v.  McMichael         191 
Northam  B.  &  Roads  Co.  v.  Lon- 
don &  Southampton  Railw.           397 
Northeastern  Railw.  v.  Payne          391 
v.  Sineath486,489 
Northern  Ind.  Railw.  v.  Martin         493 
Northern    Railw.    v.    Concord    & 
Claremont  Railw.                   230,  260 
v.  Miller  163,  197 
v.  Page            100 
Northop   v.  Newtown   &   Bridge- 
port Turnpike  Co.                         116 


Northumberland  v.  At.  St.  Law. 

Railw.  546 

Northwestern  Railw.  v.  Martin         422 
Norton  v.  Valentine  334 

Norwich  &  Lowestoft  Navigation 

Co.  v.  Theobald  108,176 

Norwich   &   Worcester  Railw.  v. 

Cahill  410 

v.  Killingley  399 

Noyes  v.  Rutland    &  Burlington 

Railw.  510,  601 

Noyes  v.  Smith  526,  531,  532 

v.  Spaulding  113,  119 

Nowell  v.  Andover  &  R.  Railw.        568 
Nulbrown  v.  Thornton  132 

Nutter  v.  Lexington  &  West  Cam- 
bridge Railw.  175 


(.). 


Oakes  v.  Oakes  151 

O'Brien   v.    Phil.,   Wil.,  &   Bait. 

Railw.  547,  550 

O'Connor  v.  Pittsburgh  306 

v.  Spaight  422 

O'Donald  v.  E.  Ind.  &  CI.  Railw.     663 

Ogdensb.,  Rome,  &  C.  Railw.  v. 

Frost  64,  163 

Ogle  v.  Graham  124 

O'Hara  v.  Lexington  Railw.  282 

Ohio,  &c.  Railw.  v.  Ridge  54 

Ohio  &  Miss.  Railw.  v.  Dunbar         590 

v.  Ind.  &  Cin.  Railw.  589,  619 

v.  Irwin  479 

v.  Jones  •  499 

v.  Meisenhiemer  499 

v.  Mucklins  541 

v.  Quier  494 

v.  Taylor  479 

Ohio  &   Pennsylvania  Railw.  v. 

Wallace  268 

Old  Colony  Railw.  v.  Evans  131 

Old  Colony  &  F.  R.  Railw.  v.  Coun- 
ty of  Plymouth  400 
Oldtown  &  Lincoln  Railw.  v.  Vea- 

zie  177 

O'Neal  v.  King  176 

Oriental  I.  Steam  Co.  v.  Briggs  68,  121 
Ormond  v.  Holland  522,  531 

Orono  v.  Wedgeworth  67 

Orpen,  ex  parte  115 

Orr  v.  Bank  of  United  States  102 

v.  Bigelow  118 

v.  Gl.A.  &  M.J.  J.  Railw.  167,571 
Osborne  v.  Bank  of  U.  States  56, 195 
Oswego  Falls  Bridge  Co.  v.  Fish  237 
Overmyer  v.  Williams  250 


lxx 


TABLE   OF   CASES. 


Overton  v.  Freeman  506 

Owen  v.  Purely  70 

v.  Van  Uster  569 

O wings  v.  Speed  215 

Oxford  Turnpike  Co.  v.  Bunnell      116 
Oxford,  Worcester,  &  Wolverhamp- 
ton Railw.  v.  South  Staffordshire 
Railw.  250 


P.  &  K.  Railw.  v.  Dunn  165 

P.  W.  Co.  v.  Brown  64 

Pacific  Railw.  v.  Chrystal  264 

v.  Hughs  199 

v.  Renshaw  199 

Pack  v.  Mayor  of  New  York  507 

Palmer  v.  Lawrence  163 

Palmer  &  Hungerford  Market,  Mat- 
ter of  347 
Palmer  Co.  v.  Ferrill  265 
Parish  v.  Parish  131 
Parker  v.  Adams                               545 
v.  Boston  &  Maine  Railw.  271, 
273,  291,  382,  535 
v.  Bristol  &  Exeter  Railw.   448 
v.  Great  Western  Railw.      448 
v.  Perkius  225 
v.  Rensselaer  &   Saratoga 

Railw.  590 

v.  Thomas  173,174 

Parkes  v.  Great  Western  Railw.      419 

Parks  v.  Boston  263,  349 

Parmelee  v.   Oswego  &   Syracuse 

Railw.  363 

Parnabv  v.  Lancaster  Canal  Co.     603, 

606 
Parrott  v.  Eyre  570 

Parsons  v.  Howe  243 

Paterson  Gas  Light  Co.  v.  Brady  518 
Patten  v.  Northern  Central  Railw.  293 
Paulding   v.   London    &    N.    W. 

Railw.  439 

Paxton  v.  Popham  574 

Peachy  v.  Rowland  506 

Peake  v.  Wabash  Railw.  1 75 

Pearce  v.  M.  &  I.  &  P.  &  I.  Railw.  559 
v.  Wycombe  Railw.  387 

Peavey  v.  Calais  Railw.  235,  330 

Peck  v.  North  Staffordshire  Railw.  457 
Penn.  Railw.  v.   Duquesne   Bor- 
ough 404 
v.  Heister  279 
v.  Keiffer  278 
v.  McClure                  279 
Pennsylvania  r.  Wheeling  Bridge 
Co.*                                           326,  332 


Pennsylvania  Railw.  v.  Common- 
wealth '  450 
Pennsylvania  Railw.  v.  Kelly  630 
v.  McCloskey632 
v.  Porter          240 
Penobscot  &  Kennebec  Railw.  v. 

Dunn  158,177 

Penobscot  Railw.  v.  Dummer.  165, 175, 

177 
v.  White         85,  106, 
175,567 
People  v.  Batchelor  78,  79 

v.  Benton  415 

v.  Caryl  92 

t;.  First  Judge  of  Columbia  278 
v.  Hayden  284 

v.  J.  &  M.  Plank-Road  Co.  450 
v.  Jillson  92 

v.Kerr  261,311 

v.  Mayor  of  Brooklyn  230,  264, 
265 
v.  Michigan  Southern  Rail- 
way 284 
v.  New  York   &   Harlem 

Railw.  223,  316 

v.  N.  Y.  Central  Railw         548 
v.  Rensselaer   &    Saratoga 

Railw.  326 

v.  St.  Louis  326 

v.  Third  Avenue  Railw.       315 
v.  Throop  215 

v.  Troy  House  Co.  64 

v.  Trustees  of  Geneva  Col- 
lege 59 
v.  Vanderbilt                          333 
v.  White                 251,  253,  261 
Peoria  &  Oquawka  Railw.  v.  Elt- 

ing  165,199 

Perkins  v.  Eastern  Railw.         499,  500 
v.  Hart  587 

Perrine  v.  Ches.  &  Del.  Canal  Co.  237 
Perry  v.  Marsh  526 

Perth   Amboy  Steamboat  Co.  v. 

Parker  66 

Peru  Railw.  v.  Haskett  493 

Peters  v.  St.  Louis  &  I.  M.  Railw.  446, 

587 
Pettibone  v.  La  Crosse  &  Milwau- 

kie  Railw.  340 

Pfeifer  v.   Sheboygan  &  Fond  du 

Lac  Railw.  340 

Phil.  &  Germ.  Railw.  v.  Wilt  467,  514 
Phil.  &  Reading  Railw.  v.  Derby  514,541 
Phil.,  Germantown,  &  N.  Railw.  v. 

Wilt  102,  511 

Philadelphia  &  Reading  Railw.  v. 
Philadelphia  261 

v.  Yeiser      284,  289 


TABLE   OF   CASES. 


lxxi 


Philadelphia  &  Trenton  Railw.        234, 

294,  299 
Philad.  &  West  Chester  Railw.  v. 

Hickman  187,  207 

Philadelphia  Railw.  v.  Trimble        272 
Philadelphia,  Wilmington,  &  Balti- 
more Railw.  v.  Cowell  212 
Philadelphia,  Wilmington,  &  Balti- 
more Railw.  v.  Howard         422,  602 
Philadelphia,  Wilmington,  &  Balti- 
more Railw.  17.  Quigley         517,  567 
Philadelphia,  Wilmington,  &  Balti- 
more Railw.  v.  Trimble                 485 
Phillips  v.  Veazie                               535 
Phelps  v.  Lyle  86 
Phene  v.  Gillan                                   135 
Phoenix  Life  Assurance  Co.              156 
Pickard  v.  Smith                                 606 
Pier  v.  Final  99 
Piggott  v.  Eastern  Counties  Railw.  452 
Pinkerton  v.  Manchester  &  Law- 
rence Railw.                           146,  153 
Pinkettu.  Wright                               151 
Piscataqua  Bridge  v.  New  Hamp- 
shire Bridge                           259,  260 
Piscataqua  Ferry  Co.  v.  Jones        108, 
163,  174,  187 
Pittsburgh  v.  Scott                            284 
Pittsburgh  &  Connellsville  Railw. 

v.  Clarke  153 

Pittsburgh  &  Connellsville   Railw. 

v.  Stewart  208 

Pittsburg  &  Steubenville  Railw.  v. 

Clark  114 

Pittsburg  &  Steubenville  Railw.  v. 

Hall  273 

Pittsfield  &  North  Adams  Railw. 

v.  Foster  271,  280 

Planche  v.  Colburn  412 

Plank-Road  v.  Buff.  &  P.  Railw.  251 
v.  Buffalo,  &c.  Railw.  283 
v.  Payne  163 

Plant  v.  Long  Island  Railw.  299,  306 
Planters'  &  Merchants'   Bank  v. 

Leavens  110 

Plate  Glass  Ins.  Co.  v.  Sunley  185 

Plum  v.  Morris  Canal  &  Bank.  Co.  306 
Plymouth  Railw.  v.  Colwell  249,  393 
Pochelu  v.  Kemper  663 

Poler  v.  New  York  Central  Railw. 

473,  491 
Pollard  v.  Hagan  231 

Pollock  v.  Stables  127 

Polly  v.  S.  &W.  RniV.  241 

Pomroy  v.  Chi.  &  Mi!w.  Railw.  313 
Pontchartrain  Railw.  v.  Lafayette 

&  Pont.  Railw.  392 

Poole  v.  Middleton  121 


Porcher  v.  Gardner  33 

Port  of  London  Assurance  Com- 
pany's Case  81 
Porter  v.  Androscoggin .  &  Ken.  R.  602 
v.  Buckfield  Branch  Railw.  414 
Portland,    Saco,     &     Portsmouth 

Railw.  v.  Graham  166,  186 

Pott  v.  Flather  131 

Potts  v.  Thames  Haven  Dock  & 

Railw.  Co.  41 

Pottstown  Gas  Co.  v.  Murphy  289 

Powell  v.  Han.  &.  St.  Jos.  Railw.     478 
Powers  v.  Bears  279,  284,  338 

Powles  v.  Page  557 

Poynder  v.  Great  N.  Railw.     242,  36  7, 

368 
Pratt  v.  Atlantic  &  St.  Lawrence 

Railw.  457 

Prendergrast  v.  Turton  214 

Presbyterian  Society  v.  Auburn  & 

Roch.  Railw.  299,  302,  303,  305 

Preston  v.  Dub.  &  Pacific  Railw.  248 
v.  Eastern  Counties  Railw.  334 
v.  Grand  Collier  Dock  Co.  158 
v.  Liverpool  &  M.  Railw.  1 7, 
35,  40,  49 
v.  Liverpool,  Manchester, 

&  N.  Railw.  49 

Price  v.  Grand  Rapids  &  I.  R.  Co.  162 

v.  Powell  554 

v.  Price  109 

Priestley  v.  Foulds  404 

v.  Fowler  520,  525,  530 

v.  Manchester    &    Leeds 

Railw.  338,  377 

Proprietors  of  Locks  &  Canals  v. 
Nashua  &  Lowell  Railw.      272,  293, 

345 
Proprietors   of   Quincy    Canal   v. 

Newcomb  300 

Protyman  v.  Ind.  &  Cin.  Railw.      234, 

252,  311 
Providence  Bank  v.  Billings  57,  237 
Provost  &  Fellows  of  Eton  College 

v.  Great  Western  Railw.  44 

Pulling    v.   London,   Chatham,   & 

Dover  Railw.  355 

Pulsford  v.  Richards  212 

Pym  v.  Great  Northern  Railw.         632 


Q. 


Quarman  v.  Burnett  506,  508 

Queen  v.  Birmingham  &  Gloucester 

Railw.  511 

v.  Birmingham  &  Oxford 

J.  Railw.  357 


Ixxii 


TABLE   OF   CASES. 


Queen  v.  Commissioners  of  Woods 

&  Forests,  ex  parte  Budge  361 

Queen  v.  Eastern  Counties  Railw.  233, 

234 
v.  Great  North  of  England 

Railw.  513 

v.  London  &  G.  Railw.  354 

v.  London  &  S.  W.  Railw.    355 

v.  L.  &  Southampton  R.       348 

v.  North  Union  Railw.  343 

Quicke,  ex  parte  358 

Quimby  v.  Vermont  Central  Railw.  484, 

486,  550,  553,  554,  631 

Quiner  v.  Marblehead  Ins.  Co.         113 


R. 


R.  &  G.  Railw.  v.  Davis  54,  286 

Radcliff  v.  Mayor  of  Brooklyn        294, 

310,  334 
Railsback  v.  Liberty  &  Abington 

Turnpike  Co.  66,  198 

Railstone   v.  York,  Newcastle,  & 

B.  Railw.  372 

Railway,  ex  parte  301 

"  v.  Beyer  273 

v.  Bucher         .  272 

v.  Davis  251 

v.  Gilson  263 

i;.  Hammell  347 

v.  Johnson  278 

v.  Lagarde  264 

v  Norton  549 

v.  Skinner  470,  471 

Railw.  Co.  v.  Gilson  268 

v.  Graham  165 

v.  Richards  97 

v.  Roderigues%159,  165,  203 

v.  Skinner  486 

v.  Washington  291 

Ramsden  v.  Dyson  220 

v.  Manchester,    S.   J.    & 

A.  Railw.  281,  299,  354 
Ranch  v.  Lloyd  &  Hill  549 

Rand  v.  Townshend  •         376 

w.  White  Mountains  Railw.  131 
Randall  v.  Cheshire  Turnpike  Co.  606 
Randleson  v.  Murray  508 

Ranger  v.  Great  Western  Railw.    388, 
406,  407,  415,  419,  422 
Ranken  v.  E.  &  W.  I.  &  B.  J. 

Railw.  367 

Rapson  v.  Cubitt  506 

Rathbone  v.  Tioga  Nav.  Co.    220,  249, 

410 
Reaveley,  ex  parte  192 

Redmond  v.  Dickerson  577 


Reedie  v.  London  &  N.  W.  Railw.  506, 

508 
Reese  &  Fisher  v.  Bank  of  Com- 
merce 115 
Reg.  v.  Frere  98 
v.  General  Cemetery  Co.         121 
v.  Grimshaw  83 
v.  Lundie  89 
v.  Mariquita  Mining  Co.           217 
v.  Mid.  Counties  &  Sh.  Junc- 
tion Railw.                         145 
v.  Registrar  61 
v.  Saddlers'  Co.                    89,217 
v.  South  Wales  Railw.              250 
v.  Victoria  Park  Co.                 168 
v.  Waterford  &  L.  Railw.         245 
v.  Wing                                     113 
Regina  v.  Ambergate  &  C.  Railw.   360 
v.  Birmingham  &  Glouces- 
ter Railw.                       405 
v.  Caledonia  Railw.               388 
v.  Commissioners  of  Norfolk  593 
v.  Committee     for     South 

Holland  Drainage         362 
v.  Cottle  357 

v.  E.   &  W.   I.    Docks  & 

Birm.  J.  Railw.     396,  397 
v.  Eastern  Counties  Railw.  296, 
341,  344,  375,  405 
v.  Ely  404 

v .  Fisher  344 

v.  General  Cemetery  Co.     145 
v.  L.  &  Greenw.  Railw.         353 
v.  Liverpool,    Manchester, 
&  Newcastle  upon  Tyne 
Railw.  144 

v.  London  &  Birmingham 

Railw.  405 

v.  London  &  Northwestern 

Railw.  373 

v.  Londonderry    &    Cole- 

raine  Railw.  147 

v.  Manchester     &     Leeds 

Railw.  362 

v.  Met.  Board  of  Works  341 
v.  Met.  Comm.  of  Sewers  373 
v.  Musson  324 

v.  North  Midland  Railw.  344 
17.  Rigby  405 

v.  Russell  403 

t7.  Saffron-Walden  Railw.  395 
v.  Sharpe  405 

17.  Sheriff  of  Middlesex  353 

v.  Southeastern  Railw.,  in 

re  Penny  345 

v.  Train  402 

v.  Trustees     of     Swansea 

Harbor  362 


TABLE   OF   CASES. 


lxxiii 


Regina  v.  United  Kingdom  Tele- 
graph Co.  401 
v.  York  &  N.  M.  Railw.  3G0, 483 
Reitenbaugh    v.    Chester    Valley 

Railw.  239,  265,  268 

Rensselaer  &  Sar.  Railw.,  Matter 

of  486, 489 

Rensselaer  &  W.  PI.  Rd.   Co.  v. 

Barton  165 

Renthrop  v.  Bang  251 

Reuter  v.  Electric  Telegraph  Co.     601 
Revere  v.  Boston  Copper  Co.  73, 

194 
Rex  v.  Amery  69 

v.  Bagshaw  361 

v.  Coin  St.  Aldwins  84 

v.  Commissioners  of  Nene  Out- 
fall 347 
v.  Doncaster  78 
v.  Faversham  77 
v.  Hungerford  Market  347,  348 
v.  Inhabitants  of  Kent  404 
v.  Inhabitants  of  Lindsay  404 
v.  Kerrison  404 
v.  Liverpool    &    Manchester 

Railw.  348 

v.  Martin  67 

v.  May  77 

v.  Mayor  of  Liverpool  361 

v.  Medley  517 

v.  Morris  405 

v.  Mott  126 

v.  Nottingham     Old     Water 

Works  376 

v.  Severn  R.  3 

v.  Trustees  of  Norwich  Roads  361 
v.  Vice-Ch.  of  Cambridge  69 

v.  Worcester  Canal  Co.     144,  149 
v.  Wright  402,  403 

Rexford  v.  Knight  253,  283 

Reynolds  v.  Dunkirk  &  State  Line 

Railw.  227 

Rice  vi  Courtis  153 

v.  Dublin  &  Wicklow  Railw.    396 

v.  Turnpike  Co.  264 

Rich  v.  Basterfield  508 

Richard  v.  La  Crosse  &  Milwaukee 

Railw.  472 

Richards    v.    Sacramento    Valley 

Railw.  489 

v.    Scarborough   Public 

Market  Co.  390 

Richardson,  ex  parte  15 

v.  Southeastern  Railw.  371 
v.  Vermont      Central 

Railw.  306 

Richmond  v.   Sacramento  Valley 
Railw.  479 


Richmond  &  Petersburgh  Railw.  v. 

Jones  471 

Richmond  Railw.  v.  Louisa  Railw.  256 
Ricker  v.  Fairbanks  416 

Ricket  v.  Met.  Railw.  Co.  346 

Ricketts  v.  E.  &  W.  I.  Docks  &  B. 

J.  Railw.  466,  500 

Ridley  v.  Plymouth  Banking  Co.    558, 

573 
Ripley  v.  Sampson  162 

River  Dunn  Nav.  Co.  v.  N.  Mid- 
land Railw.  195 
Robbins  v.  Milwaukee  &  Horicon 

Railw.  263,  350 

Robinson   v.   New   York   &   Erie 

Railw.  296 

Roberts  v.  Button  568,  569 

v.  Great  Western  Railw.  493 
v.  Ohio  &  Mobile  Railw.  179 
v.  Price  82 

v.  Read  551 

v.  Smith  526 

Rochester   &   Syracuse   Railw.  v. 

Budlong  263,  273,  277,  279 

Roch.  White  Lead  Co.  v.  Rochester  334 
Roe  v.  Birkenhead,  Lancashire,  & 

Cheshire  Junction  Railw.  101 

Rogers,  ex  parte  72 

v.  Bradshaw  257,  282,  283,  299 
v.  Huntingdon  115 

v.  Huntingdon  Bank  114 

v.  Kennebec    &    Portland 

Railw.  296,  325 

v.  Newburyport  Railw.  492,  503 

Roman  v.  Fry.  108,  114 

Rood  v.  New  York  &  Erie  Railw.    455 

Rose  v.  Story  630 

v.  Truax  579 

Rosenthal  v.  Madison  PI.  Rd.  Co.      61 

Rosevelt  v.  Brown  136,  155 

Ross  v.  Adams  350 

v.  Boston  &  Worcester  Railw.  45  7 

v.  E.  T.  &  E.  Railw.  281 

v.  Elizabethtown    &    Somer- 

ville  Railw.  270,  273 

v.  Lafayette  &  Ind.  Railw.       1 79 
v.  Madison  514 

Rouch  v.  Great  Western  Railw.       422 
Rounds  v.  Mumford.  306 

Rowe  v.  Shilson  405 

Roxbury  v.  Boston  &  Prov.  Railw.  227 
Royal  British  Bank,  in  re 

Brock  wall's  Case        212 
Mixer's  Case  565 

•    v.  Turquand  574,  575 

Royal  Exchange  Insurance  Co.  v. 

Moore  126 

Rubottom  v.  McClure  283 


lxxiv 


TABLE   OF   CASES. 


Ruck  v.  Williams 

Rundle   v.   Delaware    &    Raritan 

Canal  Co. 
Runyan  v.  Lessee  of  Coster 
Russell  v.  Hudson  River  Railw. 
Rust  v.  Low  251, 

Rut.  &  Bur.  Railw.  v.  Procter 
Ryan  v.  Cumberland  Valley  Railw. 

Ryder  v.  Alton  &  Sangamon  Railw. 


606 

54 
58 
523 
499 
559 
520, 
531 
163, 
180 


S.  Carolina  Railw.  v.  Blake  245 

S.  T.  &  A.  Railw.  in  re  346 

Sabin  v.  Bank  of  Woodstock  153 

v.  Vermont  Central  Railw.    287, 
289 
Sacramento  Railw.  v.  Moffatt  349 

Sacramento  Valley  Railw.  v.  Mof- 
fatt 484 
Sadd  v.  Maldon,  W.  &  Br.  Railw.   361, 

389 
Sagory  v.  Dubois  163 

Salem  Mill-Dam  Co.  v.  Ropes  15,  107, 

152,  175 
Salomons  v.  Laing  32,  558,  561 

Sampson   v.  Bowdoinham  Steam- 
Mill  Co.  81 
San  Antonio  v.  Lewis                       410 
Sanders  v.  Guardians  of  St.  Neot's 

Union  596,  600 

Sanderson     v.     Cockermoutli     & 

Washington  Railw.  224 

Sands  v.  Sanders  147,  148 

Sargent  v.  Franklin  Ins.  Co.  113,  114, 

116,  144 
v.  Webster  84 

Sater  v.  B.  &  Mt.  PI.  Railw.  263 

Saunders,  ex  parte  145 

Savings  Bank  v.  Davis  77 

Sawyer  v.  Northfield  535 

v.  Rut.  &  Bur.  Railw.  590,  604 
Sayles  v.  Blane  123, 155 

Sayre  v.  Louisville  Union  Benevo- 
lent Association  88 
v.  North  W.  Turnpike  Co.       56 
Scadding  v.  Lorant  79 
Scaggs  v.  Bait.  &  Wash.  Railw.       466, 

575 
Schuler  v.  Northern  L.  Railw.  255 

Schurmeier  v.  St.  Paul  &  P.  Railw.  266 
Schuylkill  Co.  v.  Thoburn  263 

Schofield  v.  School  District  195 

Scott  v.  Avery  434 

v.  Corporation  of  Liverpool      416 
v.  Eagle  Fire  Co.  80 


Scott  v.  London  Dock  Co.  464 

v.  Oakely  50 

v.  W.  &  R.  Railw.  466,  474 

Scottish    Northeastern    Railw.    v. 

Stewart  38,  50,  615 

Scudder  v.  Woodbridge  524,  526,  531 
Sea,  Fire  &  Life  Assurance  Soci- 
ety, Matter  of  1 70 
Searle  v.  Lachawanna  Railw.  293 
Seaver  v.  Boston  &  Maine  R.  531,  555 
Seddon  v.  Connell  140 
Selma  &  Tenn.  R.  v.  Tipton      65,  188, 

203 
Selma  Railw.  v.  Tipton  164 

Semmes  v.  Mayor  of  Columbus        582 
Semple  v.  London  &  Birmingham 

Railw.  247 

Seneca  Railw.  v.  Auburn  &  Roch. 

Railw.  307 

Seneca  Road  Co.  v.  Aub.  &  Roch. 

Railw.  294,  299 

Senior  v.  Met.  Railw.  346 

Serendat  v.  Saisse  509 

Sewell  v.  Lancaster  Bank  115 

Seymour  v.  Maddox  522,  531 

v.  Sturgess  162 

Shamakin  Valley  Railw.  v.  Liver- 
more  249 
Shand  v.  Henderson  338 
Sharp  v.  Great  Western  Railw.        437 
Sharrod  v.  London  &N.  W.  Railw.  466, 

514 
Shaw    v.    Boston    &    Worcester 

Railw.  545,  552 

v.  Fisher  131,  132 

v.  Holland  130 

v.  Rowley  122 

Shears  v.  Jacobs  564 

Sheffield,  A.  &  M.  Railw.  v.  Wood- 
cock 6,  9,  85,  118,  181 
Sheldon  v.  Hudson  River  Railw.      455 
Shepardson  v.  M.  &  B.  Railw.     .      284 
Sherman  v.  Mayor  of  New  York      417 
v.  New  York  Central  R.    602 
v.  Roch.  &  Sy.  Railw.  514,  520 
v.  Vermont  Central  R.      411 
Shirley  v.  Ferrers  18,  46 
Shoemaker  u.  Goshen  Turnpike  Co.  210 
Shoenberger  v.  Mulhollan          273,  364 
Shorter  v.  Smith  261 
Shortridge  v.  Bosanquet                     112 
Shrewsbury  &  Birmingham  Railw. 
v.  London  &  Northwestern  R.       35, 
589,  593,  602,  612,  615 
v.  London   &  N.  W.  &   Shrop- 
shire Union  Railw.         589,  590 
Shrunk  v.  Schuvlkill  NaT.  Co.  232,  306 
Shurtz  v.  S.  &  T.  Railw.                64,  65 


TABLE   OF   CASES. 


lxxv 


Sigfried  v.  Levan  124 

Sills  v.  Brown  554,  555 

Simpson  v.  Denison,  447,  558,  613 

v.  Lancaster    &    Carlisle 

Railw.  361 

v.  Lord  Ilowden  23,  36 

v.  So.  Staff  Waterworks 

Co.  235 

v.  Westminster      Palace 

Hotel  Co.  584 

Sims  v.  Commercial  Ilailw.  360 

Sinclair  v.  Pearson  514 

Sirrell  v.  Derbyshire,  Staffordshire, 

&  Wor.  J.  Railw.  570 

Sixth  Avenue  Railw.  v.  Kerr  315 

Skerratt   v.   North    Staffordshire 

Railw.  483 

Skip  v.  Eastern  Counties  Railw.      520, 

523,  536 
Slater,  ex  parte  156 

v.  Emerson  409 

Slaymaker  v.  Gettysburg  Bank  110 
Sleath  v.  Wilson  514 

Small  v.  Herkimer  M.  &  H.  Co.  164 
Smart  v.  Guardians  of  the  Poor  of 

Westham  Union  597 

v.  Railway  284 

Smith  v.  Allison  392 

v.  Birmingham  Gas  Co.         515 
v.  Boston  300 

v.  Crocker  124 

v.  Eastern  Railw.  467 

v.  Helmer  284 

v.  Hull  Glass  Co.  574 

v.  Ind.  ■&  Bl.  Railw.  179 

v.  Law  79 

v.  Maryland  326 

v.  McAdams  284 

v.  New    York    &    Harlem 

Railw.  522,  604 

v.  Pelah  453 

v.  Reese  River  Silver  Min- 
ing Co.  139 
Smyth  v.  Darley  82 
Snodgrass  v.  Gavit  435 
Snowden  v.  Davis  448 
Society  of  Practical  Knowledge  v. 

Abbott  108 

Solomons  v.  Lang  143 

Som.  &  Ken.  Railw.  v.  Cushing  1 78 
Somerset  Canal  Co.  v.  Harcourt  352 
Somerville  &  E.  Railw.  v.  Doughty  263, 

268 
Soper  v.  Buffalo  &  Roch.  Railw.  557 
South  Bay  Meadow  Dam  Co.  v. 

Gray  106,  164,  199 

South  Carolina  Railw.  ex  parte,        391 

u.Blake  352, 391 


South  Essex  Gas  Light  &  Coke 

Co.  in  re  584 

South  Staffordshire  Railw.  v.  Burn- 
side  156 
v.  Hall    372 
South  Wales  Railw.  ex  parte    367,  483 
South  Yorkshire  Railw.  v.  Great 

Northern  Railw.  589 

South  Yorkshire  &  River  Dun  Co. 

v.  Great  Northern  Railw.      589,  616 
Southampton   Bridge  &  I.  Co.  v. 

Local  Board  of  Health  606 

Southeastern   Railw.  v.  Brodgen    422 
v.  European  &  Am.  Tel.  Co. 

401,514 
v.  Queen  397 

Southmayd  v.  Russ  114 

Southwestern  Railw.  v.  Coward       370 
Southwick  v.  Estes  510 

Spackmann,  ex  parte  145,  561 

v.  Lattimore  15 

Sparks  v.  Liverpool  Waterworks     214 
Sparling  v.  Parker  109 

Sparrow    v.   Evansville   &  Craw- 

fordsville  Railw.      201 
v.    Oxford,  &c.  Railw.      235, 
353,  354, 358 
Spartanburgh  &  Union  Railw.  v. 

De  Graffenreid  .    201 

Spear  v.  Crawford  163 

v.  Richardson  277 

Spear  &  Carlton  v.  Newell  587 

Spooner  v.  McConnell  326 

Spottiswoode's  Case  14 

Springfield  v.  Conn.  River  Railw.  237, 
243,257,299,  305 
Spry  v.  Emperor  448 

Squire  v.  Campbell  385 

St.  George  v.  Reddington  383 

St.  James's-Club,  in  re  13 

St.  John  v.  St.  John  46 

St.  Louis  &  C.  Railw.  v.  Dalby        104 
St.  Mary's  Church  60,  72 

St.  Thomas  Hospital   v.    Charing 

Cross  Railw.  355 

Stacy  v.  Vermont  Central  Railw.  240, 

286 
Stahl  v.  Berger  124 

Stainbank  v.  Fernley  138 

Stamps  v.  Bir.,  Wolv.,  &  Stour  Val- 
ley Railw.  360,  367 
Standish  v.  Mayor  of  Liverpool        366 
Stanhope's  Case  561 
Stanley  v.  Chester  &  Birkenhead 

Railw.  25 

Stanley  v.  Stanley  136 

Stanton  v.  Wilson  203 

Stark,  ex  parte  572 


lxxvi 


TABLE   OF   CASES. 


Starr  v.  Child  300 

State  v.  B.  &  O.  Railw.  235 

v.  B.  C.  &  M.  Railw.  621 

i'.  Bank  of  Louisiana  80 

v.  Boston,  Concord,  &  Mon- 
treal Railw.  87,  246 
v.  Comm.  of  Mansfield  392 
v.  Dawson  70,  286 
v.  Digby  263 
v.  Franklin  Bank  110 
v.  Garretson  286 
v.  Gorharn  536 
v.  Great  Works  Mill.  &  Man. 

Co.  515 

v.  Hessenkamf  315 

v.  Miller  265 

v.  Morris  &  Essex  Railw.  511 
v.  Norwalk  &  Danbury  Turn- 
pike Co.  391 
V.  Overton  97,  99 
v.  Rives  230,  254 
v.  Ross  105 
v.  Thompson  100 
v.  Tudor  79 
v.  Vermont  Central  Railw.  513 
v.  Wheeling  Bridge  Co.  326 
v.    Wilmington    &   Manch. 

Railw.  594 

State  Fire  Ins.  Co.  618 

State  of  Maryland  v.  Baltimore  & 

Ohio  Railw.  625 

Stearns  v.  Old  Colony  &  Fall  River 

Railw.  493 

Steel  v.  Southeastern  Railw.  506 

v.  Southwestern  Railw.  334 

Steele  v.  Harmer  576 

v.  Midland  Railw.  356 

Steigenberger  v.  Carr  10 

Stein  v.  Ind.,  &c.  Association  663 

Stephen  v.  Smith  92 

Stephens  v.  De  Medina  127 

Stetson  v.  Faxon  300 

Stevens  v.  Rutland  &  Burlington 

Railw.  194 

Stevens  v.  South  Devon  Railw.         75, 

592,  621 
Stewart  v.  Anglo- California  Gold 

Mining  Co.  214 

Stewart  v.  Cauty  127,  130 

v.  Hamilton  College  203 

v.  Raymond  Railw.     285,  364 

Stewart's  Estate,  in  re  219 

Stikeman  v.  Dawson  192 

Stiles  v.  Western  Railw.  411 

Stockbridge  v.  West  Stockbridge         3 

Stockton  v.  Frey  627 

Stockton  &  Darlington  Railw.  v. 

Brown  236,  389 


45 


66 
395 


164 
243 


Stockton  &  Hartlepool  Railw.  v. 

Leeds   &    Thirsk    &   Clarence 

Railws. 
Stoddard    v.    Onondaga    Annual 

Conference 
Stokes  v.  Grissell 

v.  Lebanon  &  Sparta  Turn 
pike  Co. 
Stone  v.  Cambridge 

v.  Commercial  Railw.    338,  353, 
360 
Stoneham    Branch    Railw.     v. 

Gould  166,175 

Stormfeltz  v.  Manor  Turnpike  Co.  237 
Straffon's  Executors,  ex  parte  112 

Strang  v.  Beloit  &  M.  Railw.    273,  279 
Strapley   v.   London   &  N.    W. 

Railw. 
Strasburg  Railw.  v.  Echternacht 
Stratford  &  M.  Railw.  v.  Stratton 


537 
41 
176, 
179 
183,  569 
120 


Straus  v.  Eagle  Ins.  Co. 

Stray  v.  Russell 

Strong  v.  Ellsworth  10 

Stubbs  v.  Lister  214 

Stucke  v.  Milw.  &  Miss.  Railw.        489 

Sturges  v.  Knapp  583 

Sturtevant  v.  Milw.,  Wat.,  &  B. 

Railw.  338 

Sullivan    v.    Philadelphia    &    R. 

Railw.  487 

Sunbury  &  Erie  Railw.  v.  Hum- 

mell  291 

Susquehannah  Canal  Co.  v.  Wright  232 

Sutton  v.  Clark  -306,  464,  607 

v.  Louisville  265 

v.  Tatham  128 

Sutton  Harbor  Improvement  Co. 

v.  Hitchins  372 

Suydam  v.  Moore  467,  548 

Swan  v.  North  British  Australasian 

Co.  14 

Swansea  Vale  Railw.  v.  Budd  217 

Swatara  Railw.  v.  Brune  190 

Symonds  v.  City  of  Cincinnati         230, 

262,  263 


T. 


Taff-Vale  Railway  v.  Nixon  422 
Talmadge  v.  Rensselaer  &  Sarato- 
ga Railw.  469 
Tanner  v.  Tanner  150 
Tar  River  Nav.  Co.  v.  Neal  164 
Tarrant  v.  Webb  521,  531 
Tate  v.  Ohio  &  Miss.  Railw.  310 
Tattersall  r.  Groote  434 
Taunton  v.  Royal  Ins.  Co.  618 


TABLE   OF   CASES. 


lxxvii 


Taunton  &  South  Boston  Turnpike 

Co.  v.  Whiting  162 

Tawney  v.  Lynn  &  Ely  llailw.  300 
Tayler  v.  Great  Indian  Peninsula 

Railw.  146 

Taylor  v.  Briggs  631 

v.  Clemson  233,  390 

v.  County  Commissioners      271 
v.  Fletcher  183 

v.  Griswold  79 

v.  Hughes  113 

v.  Southeastern  Railw.  454 

v.  St.  Louis  306 

v.  Stray  129 

v.  York   &  N.  M.    Railw. 

in  re  363 

Tempest  v.  Kilner  109,  131 

Tennant  v.  Goldwin  461,  464 

Terre  Haute,  &c.  Railw.  v.  Smith  496 
Terry  v.  New  York  Central  Railw.  468 
Tew  v.  Harris  381 

Thames  Haven  Dock  &  Railw.  Co. 
v.  Hall  .  81,  351 

v.  Rose  81,  83,  86 

Thames  Steamboat  Co.  v.  Housa- 

tonic  Railw.  515 

Thames  Tunnel  v.  Sheldon  116,  180 
Thayer  v.    St.  Louis,  Alton,  &c. 

Railw.  497 

Thayer  v.  Vermont  Central  Railw. 

411,  412 

Thicknesse  v.  Lancaster  Canal  Co.  375 

Thigpen  v.  Miss.  Central  Railw.       1 74 

Thomas  v.  Winchester  604 

Thompson  v.  Charnock  434 

v.  Grand  Gulf  Railw.     281, 

285 

v.  New  Orleans  &  Car- 

rolton  Railw.  508 

v.   New   York    &    H. 

Railw.  237 

v.  Thompson  109 

v.  West  SomersetRailw.  310 

Thorne  v.  Taw  Vale  Railw.  3 

Thorpe  v.  Hughes  187 

v.  Rut.  &  Bur.  Railw.     54,  258 

Thurnell  v.  Balbirnie  435 

Tilleard,  in  re  50 

Tillet  v.  Charing-Cross  Company    224, 

228 
Tillotson  v.  Hudson  River  Railw.  335 
Timmons  v.  Central  Ohio  Railw.  527 
Tinsman   v.   Belvidere    Delaware 

Railw.  296 

Tippetts  v.  Walker  109 

Toledo,  &c.  Railw.  v.  Fowler  497 

Toledo  &  Wabash  Railw.  v.  Daniels  497 

v.  Thomas  496,  501 


Toledo  Bank  v.  Bond  56,  237 

Tombs  v.   Rochester  &   Syracuse 

Railw.  491 

Tomlinson  v.  Man.  &  Birm.  Railw.  235 
v.  Tomlinson  109 

Tonawanda  Railw.  v.  Munger  468,  500 
Tooke,  ex  parte  146 

Toomey  v.  London,  Br.  &  So.  Coast 

Railw.  604 

Tower  v.  Prov.  &  Wor.  Railw.  468,  501 
Towns  v.  Cheshire  Railw.  466,  500 
Townsend  v.  Ash  109 

Townshend  v.  Susquehannah  T.Co.  606 
Tracy  v.  Yates  188 

Tremain  v.  Cohoes  Company  287 

Trenton  ^Water    Power     Co.   v. 

Chambers  269 

Troup,  in  re  617 

Trow  v.  Vermont  Central  Railw.    470, 

548,631 
Troy  v.  Cheshire  Railw.  299,  337 

Troy  &  Boston  Railw.  v.  Lee    263,  268 
v.  Northern  Turnpike  Co. 

268,  273,  280,  295 
v.  Tibbitts  153,  189,  203,  204 
v.  Warren  203 

Troy  &  Greenfield  Railw.  v.  New- 
ton 177 
Troy  &  Rutland  Railw.  v.  Kerr      164, 

189, 589 
Troy  T.  Co.  v.  McChesney  163 

Trueman  v.  Loder  129 

Trustees  of  the  Presbyterian  Soci- 
ety in  Waterloo  v.  Auburn  & 
Rochester  Railw.  54 

Trustees  Swansea  Harbor,  in  re  383 
Tuckahoe  Canal  Co.  v.  Tuckahoe 

Railw.  237 

Tucker  v.  Seaman's  Aid  Society  61 
Tunney  v.  Midland  Railw.  527 

Tuohey  v.  Great  S.  &  W.  Railw.  341 
Turner  v.  Sheffield  &  R.  Railw.  288,  338 
Turnpike  Co.  v.  Hosmer  391 

v.  Wallace  56 

Turnpike  Road  v.  Brosi  349 

Tyrrell  v.  Woolley  568 


U. 


U.  S.  v.  Arredondo  237 

v.  New  Bedford  Bridge  Co.    326 
Underhill  v.  New  York  &  Harlem 

Railw.  473 

v.  Saratoga  and  Wash. 

Railw.  221 

Underwood  v.    Bedford   &    Cam- 
bridge Railw.  354 


lxxviii 


TABLE   OF   CASES. 


Underwood  v.  Hart  411 

Uniou  Bank  v.  Knapp  216 

v.  Laird  114 

Union  Bank  of  Tennessee  v.  State    110 
Union  Locks  &  Canal  Co.  v.  Towne 

193 
United  States  v.  Railway  Bridge 

Co.  231,  332 

v.  Robeson  432 

v.  Vaughan  114 

United  States  Bank  v.  Dandridge    410 

v.  Harris  249,  253 

v.  Planters'  Bank  of 

Georgia  60 

Unity  Ins.  Co.  v.  Cram  67 

Untbank  v.  Henry  County  Tjirnp. 

Co.  166 

Upfill's  Case  13,165 

Upton  v.  Soutb  Reading  Railw.      262, 

274 
Utica   &    Schenectady   Railw.   v. 

Brinkerhoff  171,204 

Utica  Bank  v.  Hillard  216 


Vail  v.  Morris  &  Essex  Railw.         270, 

272,  279 

Van  Wickle  v.  Railw.       240,  270,  279 

Vandegrift  v.  Railw.  515 

v.    Rediker  469,  500,  508 

Vanderbilt  v.  Rensselaer  &  Sar. 

Railw.  484 

Vanderbilt  v.  Richmond  T.  Co.         514 
Vanderkar  v.  Rensselaer  &  Sar. 

Railw.  500 

Vanderwerker  v.  Vermont  Cen- 
tral Railw.  411 
Varick  v.  Edwards  133 
Varillat  v.  N.  O.  &  Car.  Railw.  552 
Varrick  v.  Smith  230 
Vaughan  v.  Tafl'-Vale  Railw.  454 
Vauxhall  Bridge  Co.   v.   Earl  of 

Spencer  17,22,46 

Vawter  v.  Ohio  &  Miss.  Railw.         192 

Veazie  v.  Mayo  223,  312 

v.  Penobscot  Railw.      313,  399 

Vermont  Central  Railw.  v.  Baxter  243, 

247,  590 
v.  Burlington  392 
v.  Clares  203 

v.  Hills  222 

Vicksburg  &  Jackson  Railw.  v.  Pat- 
ton  469 
Vicksburg,   Shreveport,   &  Texas 

Railw.  v.  McKean  155,  172,  187, 189 
Victory  v.  Fitzpatrick  337 


Vilas  v.  Milw.  &  Miss.  Railw.  223,  340 
Vinal  v.  Dorchester  535 

Violet  v.  Simpson  551 

Visscher  v.  Hudson  River  Railw.     369 
Von  Schmidt  v.  Huntington  73 

Vose  v.  Grant  170 

Vt.  &  Canada  Railw.  v.  Vt.  Cen- 
tral Railw.  235 

W. 

W.  &  L.  Railw.  v.  Kearney  404 

W.  &  P.  Railw.  v.  Washington         279 
W.  N.  W.  Co.  v.  Hawksford  15 

"Wadhams  v.  Lackawanna  &  Blooms. 

Railw.  285 

Wainwright  v.  Ramsden  348 

Waitman,  ex  parte  150 

Waldo  v.  Chicago,  St.  Paul,  &  Fond 

du  Lac  Railw.  234 

v.  Martin  578 

Waldron    v.   Portland,    S-.    &    P. 

.    Railw.  468 

v.    Rensselaer   &    Sar. 

Railw.  467 

Walker,  ez  parte,  150,  584 

v.  Bartlett  123,  134,  136 

v.  Boiling  526 

v.  Boston  &  Maine  Railw.  232, 

268,  271,329 

v.  Devereaux  65,  158 

v.  Eastern  Counties  Railw.  224 

v.  London  &  Bl.  Railw.        360 

v.  Milne  109 

v.  Mobile  &  Ohio  Railw.     1 74 

Wallingford  Manufacturing  Co.  v. 

Fox  11 

Walstab  v.  Spottiswoode  12 

Ward  v.  Griswoldville  Manuf.  Co.   163 

v.  Londesborough  12 

v.  Southeastern  Railw.  120 

Ware  v.  Grand  Junction  Water  Co. 

73,  194 
v.  Regents'  Canal  Co.   290,  344, 
382 
Waring  v.  Manch.,  Sheffield,  &  L. 

Railw.  422 

Warner  v.  Mower  78 

Warren  v.  State  313 

Warren  Railw.  v.  State  399 

Warring  v.  Williams  124 

Water  Power  Co.  v.  Chamber         227 

v.  Chambers         220 

Waterford,  Wexford,  &  W.  Railw. 

v.  Dalbiac  1 76 

v.  Pidcock     185 

Waterman  v.  Conn.  &  Pass.  Riv. 

Railw.  296,  346 


TABLE   OF   CASES. 


lxxix 


Waterman  v.  Troy  &  Greenfield 

Railw.  208 1 

Waters  v.  Moss  478 

v.  Quimby  518 

Watkinsr.  Great  Northern  Railw.  244, 

336,  338 
Watson  v.  Reid  226 

Watts  v.  Salter  12,  13 

v.  Watts  134 

Webb  v.  Direct  London  &  Ports- 
mouth Railw.  27,  28,  36,  39,  40 
v.  Man.  &  Leeds  Railw.        235, 
242,361,  555 
Webber  v.  Eastern  Railw.  275 

Weeden  v.  Lake  Erie  &  Mad  River 

Railw.  208 

Welcome  v.  Leeds  537 

Weld  v.  London  &  Southwestern 

Railw.  9,  358,  394 

Welland  Railw.  v.  Berrie  168 

Welles  v.  Cowles  109 

Wells  v.  Howell  499 

v.  Som.  &  Ken.  Railw.  233 

West  Cornwall  R.  v.  Mowatt  155 

West  London  Railw.  v.  London  & 

N.  W.  Railw.  608 

West   Philadelphia    Canal   Co.  v. 

Innes  182,  184 

West  River  Bridge  v.  Dix         256,  259 
Western  Maryland  Railw.  v.  Ow- 

ings  338 

Western  Railw.  v.  Babcock  226 

Weston  v.  Bennett  410 

v.  Foster  251 

Westropp  v.  Solomon  126 

Wetmore  v.  Story  307 

Weyant  v.  N.  Y.  &  Harlem  Railw.  526 
Whaalan  v.  M.  R.  &  Lake  Erie 

Railw.  523,  531 

Wheeler  v.  Roch.  &  Sy.  Railw.        252, 

291,485 

Wheelock  v.  Moulton  11,  110 

v.  Yonng  &  Pratt  243 

Whipple  v.  Walpole  276 

Whitaker  v.  Boston  &  Maine  Railw. 

546 
Whitcomb    v.   Vermont   Central 

Railw.  219,  296 

White  v.  Boston  &  Prov.  Railw.  337 
v.  Charlotte  &  S.  C.  Railw.  262 
v.  Concord  Railw.  277,  486 

v.  Fitchburg  Railw.  274 

v.  South  Shore  Railw.  291 

v.  Vermont  &  Mass.  Railw.  125 
White  Mountain  Railw.   v.  East- 
man 85,  155,  158,  177 
White  River  Turnpike  Co.  v.  Ver- 
mont Central  Railw.  256,  299 


Whitefield  v.  Southeast  Railw.  517 
Whitehouse  v.  Fellowes  606 

Whiteman  v.  Wilm.  &  Sus.  Railw.  511 
Whitfield  v.  Southeastern  Railw.  567 
Whitfield  v.  Zelnor  408 

v.  Boston  &  Maine  Railw. 

220,  266 
Whitney  v.  At.  &  St.  L.  Railw.  490 
Whittier  v.  Portland  &  Ken.  R.  296 
Whitwell  v.  Warner  16,  556 

Wiggett  v.  Fox  525,  532 

Wiggin  v.  Free  Will  Baptist  So- 
ciety 77 
Wight  v.  Selby  Railw.                        187 
v.  Shelby  Railw.             159,  186 
Wigmore  v.  Jay                          520,  531 
Wiley  &  Moor                                      124 
Wilkins  v.  Roebuck                            564 
Wilkinson  v.  Anglo- California  Gold 
Co.                                                     144 
v.Lloyd             111,118,130 
Willard  v.  Newbury                           533 
AVillcocks,  ex  parte                             84 
Willey  u.  Southeastern  Railw.          367 
Williams  v.  Addroscoggin  &  Ken- 
nebec Railw.               409 
v.  Archer                            131 
v.  Chester    &   Holyhead 

Railw.  410 

v.  Great  Western  Railw.  92 
v.  Hartford  &  New  Ha- 
ven Railw.  239 
v.  Jones  633 
v.  Michigan  Central  R.  468 
469,  500 
v.  Natural  Bridge  Co.  300 
v.  New  Albany  &  Salem 

Railw.  492 

v.  New     York     Central 

Railw.  230,290,300,307, 

489 

v.  Pigott  14 

v.  South  Wales  Railw.       361 

v.  St.    George's    Harbor 

Co.  11, 45 

v.  Wilcox  402 

Williamson  v.  New  York  Central 

Railw.  310 

Willing  v.  Baltimore  Railw.  279 

Wills  v.  Bridge  121,124 

v.  Murray  78,  83 

Willyard  v.  Hamilton  283 

Wilmington  &  Manchester  Railw. 

v.  Saunders  70 

Wilmington  &  Raleigh  Railw.  v. 

Robeson  172 

Wilmot  v.  Corporation  of  Coven- 
try 576 


lxxx 


TABLE   OF   CASES. 


"Wilson  v.  iEtna  Insurance  Co.         435 
v.  Anderson  3 

v.  Blackbird  Creek  Co.        328 
v.  Blackbird  Creek  Marsh 

Co.  326 

v.  Cunningham  3,  551,  631 

v.  Goodman  570 

v.  Keating  157 

v.  Miers  568 

v.  Railway  Co.  472 

v.  West  Hartlepool  Railw. 

Co.  566,  602 

v.  "Wilson  86 

v.  York  &  Md.  Railw.  418 

Win.  &  St.  Peters  R.  v.  Denman  266 
Winch  v.  Birkenhead,  L.  &  C.  R.  592 
Winona  v.  St.  Peter  Railw.  263 

AVinter  v.  Muscogee  Railw.  193,  197 
"Winterbottom  v.  Wright  604 

Witherley  v.  Regent's  Canal  Co.  632 
Witmer  v.  Schlatter  16 

Witter  v.  Miss.  O.  &  R.  Railw.  392 
"Wolfe  v.  Covington  &  Lexington 

Railw.  295,  299 

"Wolverhampton    N.    "W.    Co.    v. 

Hawksford  160 

Wood  v.  Auburn  &  Roch.  Railw.     563 

v.  Duke  of  Argyll  10 

v.  Dummer  169 

v.  Epsom  &  L.  Railw.  359 

v.  McCann  579 

v.  North  Staffordshire  Railw.  405 

v.  Stourbridge  Railw.  346 

v.  Vermont  Central  Railw.    443 

Woodfin  v.  Insurance  Co.  93 

Woodfolk  ».  Nashv.  &  C.  Railw.      261, 

264,  265 
Woodman  v.  Joiner  633 

Wooley  v.  Constant  124 

Woolson  v.  Northern  Railw.  499 

Worcester   &    Nashua    Railw.   v. 

Hinds  175 

Worcester  Turnpike  v.  Willard  162 
Works  v.  Junction  Railw.  332 

Worrall  v.  Judson  136 


Worsley  v.  South  Devon  Railw.       358 

Worthington  v.  Bait.  &  Ohio  Railw.  627 

Wright  v.  Coster  306 

v.  Gossett  494 

v.  Ind.  &c.  Railw.  501 

v.  N.  Y.  Central  Railw.      521, 

531, 532 

v.  Petrie  170 

v.  Scott  330 

v.  Wai-ren  149 , 

v.  Wilcox  511 

Wyatt  v.  Great  W.  Railw.        538,  632 

Wycombe  Railw.  v.  Donnington 

Hospital  226 

Wyman    v.   Lexington    &    West 

Cambridge  Railw.  274,  382 

v.  Penn.  &  Ken.  Railw.    496 

Wynn  v.  Alford  548 

v.  Shropshire  Union  Railw. 

&  Canal  621 

Wynne  v.  Price  132,  136 

Wynstanley  v.  Lee  339 

Wyrley  Nav.  v.  Bradley  297 


Yarborough  v.  Bank  of  England  511 

York  &  Cumberland  R.  v.  Pratt  175 
York  &  Maryland  Line  Railw.  v. 

Winans  590 

Young  v.  Harrison  283 

v.  N.  Y.  Central  Railw.  507 

v.  Yarmouth  535 


Zabriskie  v.  C.  C.  &  C.  Railw.    67,  78, 

557,  563 

v.  Jerse)r  City  &  Bergen 

Railw.  314 

Zack  v.  Penn.  Railw.  268 

Zimmerman  v.  Union  Canal  Co.     232, 

284,  306 


THE  LAW  OF  RAILWAYS. 


CHAPTER    I. 


INTRODUCTION. 


1.  Origin  of  railways  in  England. 

2.  First  built  upon  one's  own  land,  or  by 

special  license  from  the  owner. 

3.  Questions  in  regard  to  private  railways. 


4.  Railways  in  America,  public  grants. 

5.  Use  of  steam  power  on  railways. 

6.  The  franchise  of  a  railway  not  necessarily 

corporate,  nor  unassignable. 


§  1.  1.  Although  some  of  the  Roman  roads,  like  the  Appian 
Way,  were  a  somewhat  near  approach  to  the  modern  railway, 
being  formed  into  a  continuous  plane  surface,  by  means  of 
blocks  of  stone  fitted  closely  together,  yet  they  were,  in  the 
principle  of  construction  and  operation,  essentially  different 
from  railways.  The  idea  of  a  distinct  track,  for  the  wheels  of 
carriages,  does  not  seem  to  have  been  reduced  to  practice  until 
late  in  the  seventeenth  century.  In  1676,  some  account  is 
given  of  the  transportation  of  coals  near  Newcastle,  upon  the 
river  Tyne,  upon* a  very  imperfect  railway,  by  means  of  rude 
carriages,  whose  wheels  ran  upon  some  kind  of  rails  of  timber.1 
About  one  hundred  years  afterwards,  an  iron  railway  is  said  to 
have  been  constructed  and  put  in  operation  at  the  colliery  near 
Sheffield.  From  this  time  they  were  put  into  very  extensive 
use,  for  conveying  coal,  stone,  and  other  like  substances,  short 
distances,  in  order  to  reach  navigable  waters,  and  sometimes 
near  the  cities,  where  large  quantities  of  stone  were  requisite 
for  building  purposes. 

2.  These  railways,  built  chiefly  by  the  owners  of  coal-mines 

1  Roger  North's  Life  of  Lord  Keeper  North,  vol.  2,  p.  281 ;  Ency.  Americana, 
Art.  Railway,  vol.  10,  p.  478. 

1  1 


2  INTRODUCTION.  §  1. 

and  stone-quarries,  either  upon  their  own  land  or  by  special 
license,  called  way-leave,  upon  the  land  of  others,  had  become 
numerous  *  long  before  the  application  of  steam  power  to  rail- 
way transportation. 

3.  Some  few  questions  in  regard  to  the  use  of  these  railways, 
or  tramways,  at  common  law,  have  arisen  in  the  English  courts.2 
But  as  no  such  railways  exist  in  this  country,  it  would  scarcely 
be  expected  we  should  here  more  than  allude  to  such  cases.3 

2  Walford  on  Railways,  2;  Keppell  v.  Bailey,  2  My.  &  K.  517;  Hemingway 
v.  Fernandes,  13  Simons,  228.  These  cases  seem  to  establish  the  rule,  that  a 
covenant  to  erect  a  railway  across  the  land  of  another,  and  to  use  the  same 
exclusively  for  a  given  transportation,  is  binding  upon  the  assignees  of  the 
interest. 

But  a  mere  covenant  to  use  an  adjoining  railway,  and  pay  a  specified  toll, 
does  not  run  with  the  land  then  used  by  the  covenanter,  and  from  which  he 
derives  the  material  transported.     Id. 

3  Walford,  3-10.  The  points  chiefly  discussed  in  the  reported  cases  in  refer- 
ence to  private  railways  and  railways  at  common  law,  are  :  — 

1.  That  these  way-leaves,  or  reservations,  by  which  one  man  has  the  right  to 
build  a  railway  upon  the  land  of  others,  or  in  the  rightful  occupation  of  others, 
are  not  to  be  limited  to  the  kind  of  railway  in  use  at  the  date  of  the  reservation 
or  grant,  but  will  justify  the  building  of  a  railway,  suitable  and  convenient  for 
the  use  for  which  the  reservation  or  grant  is  made,  and  with  all  such  needful  or 
useful  improvements,  as  the  progress  and  improvements  of  art  and  science  will 
enable  the  grantee  to  avail  himself  of.  Dand  v.  Kingscote,  2  Railw.  C.  27; 
s.  c.  6  M.  &  W.  174.  Hence  it  was  considered  that  such  railways  might,  upon 
the  general  application  of  steam  power  to  railways,  adopt  that  as  an  improve- 
ment, coming  fairly  within  the  contemplated  use  of  their  grant  or  reservation, 
although    wholly   unknown    at   the   date   of    their   grant.      Bishop   v.   North, 

3  Railw.   C.  459. 

2.  That  this  will  not  justify  the  grantee  of  a  way-leave  for  a  railway,  for  a 
special  purpose,  to  erect  one  for  general  purposes  of  transporting  merchandise 
and  passengers.  Dand  v.  Kingscote,  2.  Railw.  C.  27  ;  Farrow  v.  Vansittart,  1 
Railw.  C.  602;  Durham  &  Sunderland  R.  v.  Walker,  3  Railw.  C.  36.  In  this 
last  case,  which  was  a  decision  of  the  Exchequer  Chamber,  the  way-leave  was 
retained  by  the  landloi-d  in  leasing  the  land,  and  the  court  say,  it  is  not  an  ex- 
ception, for  it  is  not  parcel  of  the  thing  granted,  and  it  is  not  a  reservation,  as  it 
did  not  issue  out  of  the  thing  granted,  but  it  is  an  easement,  newly  created,  by 
way  of  grant,  from  the  lessee.  And  that  it  was  to  be  presumed  the  deed  was 
executed  by  both  parties,  lessor  and  lessee. 

But  it  was  held,  that  where,  by  a  canal  act,  (32  Geo.  3,c.  100,  §  54,)  the  pro- 
prietors of  coal-mines,  within  certain  parishes,  are  empowered  to  make  railways 
to  convey  coal  over  the  land  of  others,  by  paying  or  tendering  satisfaction,  that 
this  power  was  not  limited  to  such  persons  as  were  the  proprietors,  at  the  date 
2* 


§  1.  INTRODUCTION.  3 

*4.  All  railways  and  other  similar  corporations  in  this  coun- 
try exist,  or  are  presumed  to  have  originally  existed,  by  means 
of  an  express  grant  from  the  legislative  power  of  the  state  or 
sovereignty.4 

5.  The  first  use  of  locomotive  engines  upon  railways  for  pur- 
poses of  general  transportation  does  not  date  further  back  than 
October,  1829  ;  and  all  the  railways  in  this  country,  with  one  or 
two  exceptions,  have  been  built  since  that  date.5 

of  the   act,  but   extended   to   subsequent  proprietors.      Bishop   v.  North,   3 
Railw.  C.  459. 

3.  That  if  the  railway  was  such  a  railway  as  the  company,  at  the  time  when 
it  was  made,  might  lawfully  make,  for  the  purposes  for  which,  when  made,  they 
might  lawfully  use  it,  the  plaintiff,  as  reversioner,  had  no  ground  of  complaint, 
by  reason  of  the  intention  of  the  company  to  use  it  for  other  purposes,  for  which 
they  had  no  right  to  use  it,  until  such  intentions  were  actually  carried  into 
effect.     Durham  &  Sunderland  R.  v.  Walker,  3  Railw.  C.  36. 

But  where  other  parties  have  acquired  the  right  to  use  a  railway  originally 
erected  by  private  enterprise  and  for  private  purposes,  the  English  courts  at  an 
early  day  restrained  the  owners  of  the  railway  by  mandamus  from  taking  up 
their  track,  and  required  them  to  maintain  it  in  proper  condition  for  public 
use.  Rex  v.  Severn  R.  2  B.  &  Aid.  646.  But  see  Thome  v.  Taw  Vale  R. 
13  Beavan,  10. 

4.  That  such  way-leaves,  for  the  erection  and  use  of  railways  upon  the  land 
of  others,  may  exist  by  express  contract ;  by  presumption  or  prescription  ;  from 
necessity,  as  accessory  to  other  grants ;  and  by  acquiescence,  short  of  the  limit 
of  prescription.  Barnard  v.  Wallis,  2  Railw.  C.  162;  Monmouth  Canal  Co.  v. 
Harford,  1  C.  M.  &  R.  614. 

These  railways,  at  common  law  and  by  contract,  impose  certain  burdens  upon 
the  proprietors,  as  the  payment  of  rent  sometimes  for  the  use  of  the  land,  tenant's 
damages,  and  the  keeping  their  roads  in  repair,  so  as  not  to  do  damage  to  the 
occupiers  of  the  adjoining  lands.  Wilson  v.  Anderson,  1  Car.  &  K.  544  ;  Wal- 
ford,  supra. 

4  2  Kent,  Comm.  276,  277;  Stockbridge  v.  West  Stockbridge,  12  Mass.  R. 
400;  Hagerstown  Turnpike  Co.  v.  Creeger,  5  Har.  &  J.  122  ;  Greene  v.  Dennis,  6 
Conn.  R.  292,  302,  Hosmer  Ch.  J.  ;  Franklin  Bridge  Co.  v.  Wood,  14  Ga.  R.  80. 
But  from  the  case  of  Wilson  v.  Cunningham,  3  California  R.  241,  it  seems  that 
the  municipal  authorities  of  San  Francisco  did  assume  to  grant  a  private  railway 
within  the  limits  of  the  city.  The  court  held  the  proprietor  liable  for  the  slight- 
est negligence  in  its  use,  whereby  third  parties  were  injured.     Post,  §  250. 

5  The  celebrated  trial  of  locomotive  engines  upon  the  Liverpool  and  Man- 
chester Railway,  for  the  purpose  of  determining  the  relative  advantage  of 
stationary  and  locomotive  power  upon  such  roads,  and  which  resulted  in  favor 
of  the  latter,  was  had  in  October,  1829.  The  Quincy  Railway,  for  the  trans- 
portation of  granite  solely,  by  horse  power,  was  constructed  about  two  years 

3* 


4  INTRODUCTION.  §  1. 

6.  There  is  nothing  in  the  prerogative  right  of  maintaining 
and  operating  a  railway  and  taking  tolls  thereon  which  is  ne- 
cessarily of  a  corporate  character,  or  which  might  not,  with  per- 
fect propriety,  belong  to,  or  be  exercised  by,  natural  persons,  or 
which  in  its  nature  may  not  be  regarded  as  assignable.6 

before  this.  But  the  Boston  and  Lowell  Railway,  one  of  the  first  railways  in 
this  country  for  general  transportation  of  passengers  and  merchandise  by  the 
use  of  steam  power  and  locomotive  engines  was  incorporated  in  June,  1830. 
And  railways  for  purposes  of  general  traffic  were  constructed  about  the  same 
date  in  most  of  the  older  States,  and  very  soon  throughout  the  country. 
6  Bennett,  J.,  in  Bank  of  Middlebury  v.  Edgerton,  30  Vt.  B.  182. 


§2. 


PRELIMINARY  ASSOCIATIONS. 


"CHAPTER    II. 


PUBLIC  RAILWAYS  AS  CORPORATIONS. 


PRELIMINARY  ASSOCIATIONS. 


SECTION    I. 
Mode  of  instituting'  Railway  Projects. 


1 .  Subscribers'  associations  in  England. 

2.  Subscribers  bound  by  subsequent  charter. 

3.  Issue  and  registry  of  scrip  certificates. 

4.  Original  subscriber  liable  to  unregistered 

purchaser. 

5.  Holders  of  scrip  entitled  to  registry. 

6.  Preliminary  associations  not  common  in 

this  country. 


7.  Petitioners  for  incorporation  file  plans 

and  surveys. 

8.  Present  English  statutes. 

9.  Preliminary  associations  may  be  regis- 

tered. 
10.  Not  now  held  responsible  as  partners  in 
England. 


§  2.  1.  The  mode  of  instituting  railway  enterprises,  in  Eng- 
land, is  more  formal,  and  essentially  different,  from  that  adopted 
in  most  of  the  American  States.  There  the  promoters  usually 
associate,  under  two  provisional  deeds,  the  one  called  a  "  Subscri- 
bers' Agreement,"  and  the  other  a  "  Subscription,  or  Parliamen- 
tary Contract,"  which  are  expected  only  to  serve  as  the  basis  of 
a  temporary  organization,  till  the  charter  is  obtained.  This  is 
specifically  and  often  in  detail,  to  some  extent,  provided  for,  in 
the  subscribers'  agreement.  A  board  of  provisional  directors  is 
provided,  to  carry  forward  the  enterprise,  whose  powers  are  de- 
fined in  the  subscribers'  agreement,  or  deed  of  association,  and 
whose  acts  will  not  bind  the  members,  unless  strictly  within  the 
powers  conferred  by  the  deed. 

2.  Under  this  form  of  association  the  subscribers  are  bound, 
by  the  act  obtained,  if  within  the  powers  conferred  by  the  deed, 
even  where  it  involves  the  purchase  of  canal,  and  other  pro- 
perty, by  the  company.1  And  courts  of  equity  often  interfere 
to   restrain   the    *  provisional   directors    from   exceeding   their 


1  Midland  Great  Western  Railway  v.  Gordon,  16  M.  &  W.  804. 

*631,  632 


6  PRELIMINARY   ASSOCIATIONS.  §  2. 

powers  under  the  deed,2  or  misapplying  the  funds,  or  delaying 
payment  of  the  debts  of  the  association.3 

3.  The  provisional  directors  usually  issue  scrip  certificates, 
which  pass  from  hand  to  hand,  by  delivery  merely,  and  after  the 
charter  is  obtained,  the  scrip-holders  are  registered,  as  share- 
holders in  the  company,  and  thereby  become  entitled  to  all  the 
rights,  and  subject  to  all  the  liabilities  of  the  shareholders.4 

4.  And  if  the  original  subscriber  sell  the  scrip  to  one  who 
omits  to  have  his  name  registered  as  a  shareholder,  by  reason  of 
which  the  original  subscriber  cause  his  name  to  be  registered, 
and  sell  the  shares  again,  he  will  be  held  to  account  for  the 
avails  of  the  second  sale,  as  a  trustee  for  the  first  purchaser.5 

5.  But  the  company  are  not  obliged  to  accept  of  the  holders 
of  scrip,  as  shareholders,  in  discharge  of  the  original  subscri- 
bers, it  has  been  said,  but  may  insist  upon  registering  the  origi- 
nal subscribers  to  the  deed  of  association,  to  whose  aid  it  may 
be  presumed  the  promoters  looked  in  undertaking  the  enter- 
prise, which  by  their  act  of  incorporation  they  are  morally,  and 
in  some  cases  legally,  bound  to  carry  forward.6  But  the  Eng- 
lish decisions,  upon  the  whole,  hardly  seem  to  justify  this  prop- 
osition.     The    subscriber   cannot    abandon  the-    obligation   at 

2  Gilbert  v.  Cooper,  4  Railw.  C.  396.  All  parties  concerned  must  be  made 
parties  to  the  bill,  even  shareholders  of  whom  it  is  alleged  a  rival  company  pro- 
pose to  purchase  shares,  to  destroy  the  independence  of  one  of  the  companies, 
connected  with  the  common  enterprise.  Greathed  v.  S.  W.  &  Dorchester 
Railway,  4  Railw.  C.  213. 

3  Lewis  v.  Billing,  4  Railw.  C.  414  ;  Bagshawe  v.  Eastern  Union  Railway,  6 
Railw.  C.  152;  s.  C.  7  Hare,  114;  Bryson  v.  Warwick  &  Birmingham  Canal 
Co.  23  Eng.  L.  &  Eq.  &  R.  91.  In  this  last  case,  the  railway  company  being  only 
provisionally  registered,  expended  £10,000  in  the  purchase  of  the  stock  of  the 
defendants.  The  railway  finally  failing  to  go  into  operation,  in  the  process  of 
winding  up,  one  of  the  shareholders  was  allowed  to,  institute  proceedings  in 
equity,  on  behalf  of  himself  and  others,  being  shareholders,  to  compel  defend- 
ants to  refund  the  money,  and  the  court  held  the  contract  illegal,  and  compelled 
the  defendants  to  refund  the  money  received  under  it. 

4  Post,§  47;  Birmingham,  B  &  Th.  J.  Railway  v.  Locke,  1  Q.  B.  256; 
London  Grand  J.  Railway,  v.  Graham,  id.  271  ;  The  Cheltenham  &  G.  W.  U. 
Railway  v.  Daniel,  2  Railw.  C.  728  ;  Sheffield  &  A.  &.  M.  Railway  v.  Wood- 
cock, 2  Railw.  C.  522. 

5  Beckitt  v.  Bilbrough,  19  Law  J.  522  ;  8  Hare,  188. 
*  Hodges  on  Railways,  97. 


§  2.  MODE   OF  INSTITUTING   RAILWAY  PROJECTS.  7 

will.7  But  if  the  scrip  is  *  transferable,  by  delivery,  it  would 
be  strange  if  the  holder  was  not  entitled  to  be  registered,  as  a 
shareholder,  the  same  as  the  assignee  of  a  fully  registered 
share  in  the  stock.  And  for  the  company,  after  having  issued 
scrip  certificates,  in  a  form  calculated  to  invite  purchases,  and 
when  they  were  aware  of  the  use  constantly  made  of  such  scrip, 
to  refuse  to  register  the  names  of  the  holders,  as  shareholders, 
and  members  of  the  company,  would  amount  to  little  less  than 
express  fraud.  Hence  we  conclude  they  have  no  right  to  de- 
cline accepting  such  scrip-holder,  as  a  shareholder.8  But 
where  false  scrip  had  been  issued,  beyond  the  amount  allowed 
in  the  charter,  and  the  full  number  of  shares  allowed  by  the 
charter  already  registered,  it  was  held  the  company  could  not, 
upon  that  ground,  refuse  to  register  the  shares  of  such  as  had 
purchased  the  genuine  scrip.9  But  we  shall  have  occasion  to 
say  more  upon  this  subject  elsewhere.10 

6.  By  the  laws  of  some  of  the  States  a  given  number  of  per- 
sons associating,  in  a  prescribed  form,  for  particular  purposes, 
as  religious,  manufacturing,  and  banking  purposes,  and  often 
for  any  lawful  purpose,  are  declared  to  be  a  corporation.  In 
such  cases  no  application  to  the  legislature  is  required.  But 
generally,  railways  in  this  country  have  obtained  special  acts  of 
incorporation.  There  is,  in  most  of  the  States,  no  provision  for 
any  preliminary  association,  and  these  enterprises  are,  for  the 
most  part,  carried  forward,  by  individuals,  or  partnerships,  and 
questions  arising,  in  regard  to  the  binding  force  of  the  acts  of 
the  promoters,  either  upon,  or  towards  the  corporation,  must 
depend  upon  the  general  principles  of  the  law  of  contract.11 

7.  By  the  general  law  of  some  of  the  States  the  petitioners  are 
required  to  furnish  surveys  of  the  proposed  route,  properly  delin- 
eated upon  charts,#by  competent  engineers,  with  estimates,  and 
other  information  requisite  for  the  full  understanding  of  the 
subject.     And  these  profiles  and  plans  are  required,  where  the 

7  Kidwelly  Canal  Co.  v.  Raby,  2  Price  93  ;  Great  North  of  Eng.  Railway  v. 
Biddulph,  2  Railw.  C.  401,  where  the  question  is  raised,  but  not  determined. 

8  Midland  G.  W.  Railway  v.  Gordon,  5  Railw.  C.  76. 

9  Daly  v.  Thompson,  10  M.  &  W.  309. 

10  Post,  §  39,  47. 

11  Angell  &  Ames  on  Corporations,  §  86-94. 


8  PRELIMINARY   ASSOCIATIONS.  §  2. 

petition  is  granted,  to  be  deposited  in  some  public  office,  for  in- 
spection and  preservation.12 

8.  Since  the  publication  of  the  former  edition,  the  mode  of 
procedure  in  obtaining  parliamentary  powers  for  railways,  in 
England,  has  been  considerably  changed.  The  former  laws 
have  been  repealed,  and  the  whole  consolidated  into  one  stat- 
ute,13 called  "  The  Companies'  Act,  1862,"  which  applies  to 
other  companies  as  well  as  railways. 

9.  The  usual  course  now  is  for  the  preliminary  association  to 
register  itself  as  a  preliminary  company  under  the  Act  of  1862, 
for  the  purpose  of  obtaining  a  special  Act  of  Parliament.  This 
is  effected  by  the  promoters  signing  a  memorandum  of  associa- 
tion, in  which  the  powers  of  the  company  are  specially  limited 
to  certain  acts  or  purposes. 

10.  If  the  association  be  not  registered  under  the  statute  so 
as  to  constitute  it  a  corporation  with  limited  powers,  there  may 
be  danger  that  the  individual  members,  who  are  active  in  pro- 
moting the  enterprise,  may  incur  the  responsibility  of  general 
partners.14  But  in  England,  it  seems  now  settled  that  the  pro- 
moters of  railways  are  not,  ordinarily,  to  be  held  responsible,  as 
partners,  for  the  acts  of  each  other.15 

12  Laws  of  Mass.  1833,  ch.  176  ;  2  Railroad  Laws  &  Ch.  616 ;  Id.  657 :  Laws 
of  Mass.  1848,  ch.  140;  Laws  of  Rhode  Island,  1836  ;  2  Rail.  Laws  &  Ch.  838  ; 
Laws  of  Conn.  1849,  ch.  37  ;  Id.  1153;  Rev.  Statutes  of  Maine,  ch.  81,  §  1  ; 
1  Rail.  Laws  &  Ch.  305.  Similar  provisions  exist  in  many  of  the  other  States. 
But  they  are  very  general,  and  ordinarily  the  plans  furnished  are  so  imper- 
fectly made,  as  not  to  afford  much  protection  to  land-owners.  And  a  compli- 
ance with  these  requirements  not  being,  in  any  sense  indispensable  to  the 
validity  of  special  acts,  they  are  probably  not  very  strenuously  enforced  by 
legislative  committees,  especially  in  cases  where  opposition  is  not  made  to  the 
new  incorporation,  which  is  not  very  common,  unless  the  project  interferes  with 
some  rival  work. 

13  25  &  26  Vict.  c.  89. 

14  Hodges  on  Railways,  (ed.  1865,)  2. 

15  Hamilton  v.  Smith,  5  Jur.  N.  S.  32;  Post,  §  4,  n.  11 ;  Norris  v.  Cooper,  3 
H.  Lds.  Cas.  161.  Statutes  27  &  28  Vict.  c.  121,  facilitates,  in  certain  cases, 
the  obtaining  of  powers  for  the  construction  of  railways.  The  act  may  be  cited 
as  "The  Railways  Construction  Facilities  Act,  1864."  The  recital  to  the  pre- 
amble moderates  the  cases  to  which  the  act  is  to  apply  ;  it  recites  that  it  is  ex- 
pedient to  facilitate  the  making  of  branch  and  other  lines  of  railway,  and  de- 
viations of  existing  railways,,  and  of  railways  in  course  of  construction,  and  also 


§3. 


CONTRACTS   OF   PROMOTERS  NOT   BINDING. 


*SECTION    II. 


Contracts  of  the  Promoters  not  binding  at  law  upon  the 
company. 


1 .  In  this  country  promoters  only  bind  them- 
selves and  associates. 

2.  Contracts  of  promoters  not  enforceable  by 
company. 


3.  But  by  consenting  to  a  decree  in  equity 
setting  up  the  contract,  the  company  will 
be  held  to  have  adopted  it. 


§  3.  1.  The  promoters  of  railways,  in  this  country,  where  the 
law  makes  no  provision  for  the  preliminary  association  becom- 
ing a  corporation,  can  only  bind  themselves  and  their  associates, 
at   most,  by  their  contracts.1     The  promoters  are  in  no  sense 

the  execution  of  new  works  connected  with,  or  for  the  purposes  of,  existing 
railways ;  and  that  the  object  aforesaid  would  be  promoted,  if,  where  all  land- 
owners and  other  parties  beneficially  interested  are  consenting  to  the  making  of 
a  railway,  or  the  execution  of  a  work,  the  persons  desirous  of  making  or  execut- 
ing the  same  were  enabled  to  obtain  power  to  do  so,  on  complying  with  the  con- 
ditions of  the  general  Act  of  Parliament,  without  being  obliged  to  procure  a 
special  act.  The  promoters  having  contracted  for  the  purchase  of  all  the  lands 
required  for  the  railway,  they  are  empowered  to  apply  for  a  certificate  from  the 
Board  of  Trade,  in  the  same  manner,  and  subject  to  the  same  incidents,  as  ob- 
taining a  certificate  under  the  Railways  Companies'  Powers  Act. 

The  lines  and  works  of  a  railway  are  sufficiently  shown  on  the  plans  depos- 
ited by  a  black  line,  with  dotted  lines  on  each  side,  to  mark  the  limits  of  devia- 
tion. Weld  v.  London  and  South  Western  Railway  Co.,  9  Jur.  N.  S.  510, 
S.  C.  11  W.  R.  448. 

Where  the  deposited  plans  and  sections  specify  the  span  and  height  of  a 
bridge  by  which  a  railway  is  to  be  carried  over  a  turnpike  road,  the  company 
will  not,  in  the  construction  of  the  bridge,  be  allowed  to  deviate  from  the  plans 
and  sections.  Attorney-General  v.  Tewkesbury  and  Great  Malvern  Railway 
Company,  9  Jur.  N.  S.  951  ;  s.  c.  8  L.  T.  N.  S.  682. 

1  Moneypenny  v.  Hartland,  1  C.  and  P.  352.  Abbott,  Ch.  J.,  said:  "Before 
an  act  passes  for  such  a  work  as  this,  the  surveyor  and  other  persons  employed 
on  it  look  to  the  committee,  or  body  of  adventurers,  who  firs't  employ  them." 
S.  p.  Kerridge  v.  Hesse,  9  C.  &  P.  200;  Doubleday  v.  Muskett,  7  Bing.  110. 
And  one  who  attends  the  meetings  of  such  preliminary  association,  and  takes 
part,  will  ordinarily  be  precluded  from  denying  his  liability  as  a  partner.  Har- 
rison v.  Heathorn,  6  Man.  &  Gr.  81 ;  Sheffield,  Ash.  and  M.  Railway  v.  Wood- 
cock, 7  M.  and  W.  574.  J£  the  defendants  have  suffered  themselves  to  be  held 
out  as  partners  in  the  enterprise,  and  engaged  in  carrying  it  forward,  and 

*634 


10  PRELIMINARY   ASSOCIATIONS.  §  8. 

identical  *with  the  corporation,  nor  do  they  represent  thern,  in 
any  relation  of  agency,  and  their  contracts  could  of  course 
only  bind  the  company,  so  far  as  they  should  be  subsequently 
adopted  by  it,  as  their  successors  ;  much  in  the  same  mode  and 
to  the  same  extent,  and  under  the  same  restrictions  and  limita- 
tions, as  the  contracts  of  one  partnership  bind  a  succeeding  part- 
nership in  the  same  house. 

2.  But  a  contract  by  a  joint-stock  association,  that  each  mem- 
ber shall  pay  all  assessments  made  against  him,  cannot  be 
enforced,  by  a  corporation  subsequently  created,  and  to  which, 

others  have  performed  service  for  the  association,  upon  their  credit,  they  are 
liable.  Wood  v.  The  Duke  of  Argyll,  6  Man.  &  Gr.  928  ;  Steigenberger  v. 
Carr,  3  id.  191.  But  express  proof  is  required  of  authority  from  the  partners, 
or  of  a  necessity  to  draw  bills,  in  the  conduct  of  the  business,  to  justify  the 
directors  in  drawing  bills  on  the  credit  of  the  association.  Dickinson  v.  Valpy, 
10  B.  &  C.  128.  From  the  foregoing  cases,  and  Bell  v.  Francis,  9  C.  &  P.  66,  and 
some  others,  it  would  seem,  that  the  directors  and  managing  committee  are 
always  liable  for  services  rendered  such  associations,  on  their  employment  and 
credit,  and  that  such  other  members  of  the  association  are  liable  also,  as  the 
terms  of  the  association,  or  their  own  active  agency  in  the  employment  of  ser- 
vants and  agents,  fairly  justify  such  employees  in  looking  to  for  compensation 
Post,  §4,  n.  11. 

In  regard  to  admissions  made  by  provisional  committee-men,  and  others,  who 
have  taken  part  in  instituting  railway  projects,  some  allowance  is  made  in  the 
English  courts,  for  probable  mistakes  and  misapprehensions,  by  those  not  well 
acquainted  with  the  liabilities  of  such  persons.  Newton  v.  Belcher,  6  Railw.  C. 
38;  s.  c.  12  Q.  B.  921.  And  where  others  have  not  acted  upon  such  admis- 
sions, the  party  has  been  allowed  to  show  that  they  were  made  under  mistake, 
either  of  law,  or  fact,  and  if  so,  the  party  has  been  held  not  to  have  incurred 
any  additional  liability  thereby.  Newton  v.  Liddiard,  6  Railw.  C.  42  ;  s.  c. 
12  Q.  B.  925. 

The  rule  laid  down  by  Bailey,  J.,  in  Heane  v.  Rogers,  9  B.  &  C.  577,  upon 
this  subject,  is  here  expressly  recognized  by  Lord  Denman,  Ch.  J.  "  The 
general  doctrine  laid  down  in  Heane  v.  Rogers,  that  the  party  is  at  liberty  to 
prove  that  his  admissions  were  mistaken,  or  untrue,  and  is  not  estopped,  or  con- 
cluded by  them,  unless  another  person  has  been  induced  by  them  to  alter  his 
condition,  is  applicable  to  mistakes,  in  respect  of  legal  liability,  as  well  as  in 
respect  of  fact."  And  this  estoppel,  it  was  held  in  the  principal  case,  only 
extends  to  parties  and  privies,  to  the  particular  transaction  in  which  the  admis- 
sion was  made,  and  that  third  parties,  having  no  interest  in  it,  either  originally 
or  by  derivation,  can  claim  no  benefit  from  it.  This  is  in  accordance  with  the 
established  principles  of  the  law  of  evidence,  at  the  present  time.  See  the 
opinion  of  the  court  in  Strong  v.  Ellsworth,  26  Vt.  R.  366. 
*635 


§  4.  SUBSCRIBERS   TO   PRELIMINARY   ASSOCIATION.  11 

in  pursuance  of  the  original  articles  of  association,  the  funds 
and  all  the  effects  of  the  former  company  have  been  trans- 
ferred.2 Nor  is  the  act  of  all  the  corporators  even,  the  act  of  the 
corporation,  unless  done  in  the  mode  prescribed  by  the  charter 
and  general  laws  of  the  state.3  Nor  can  an  incorporated  com- 
pany sustain  an  action  at  law,  upon  a  bond  executed  to  a  pre- 
liminary association,  by  the  name  of  the  individuals  and  their 
successors,  as  the  governors  of  the  Society  of  Musicians,  for  the 
faithful  accounting  of  A.  B.,  their  collector,  to  them  and  their 
successors,  governors,  &c,  the  company  being  subsequently  in- 
corporated.4 

3.  But  the  company,  by  consenting  to  a  decree  against  them, 
upon  a  bill  to  enforce  a  contract  with  the  promoters,  by  which 
they  stipulated  to  withdraw  opposition  in  parliament,  upon  con- 
dition that  the  company,  when  it  came  into  operation,  should 
take  the  land  of  the  opposers  of  the  bill  at  a  specified  price,  and 
pay  all  the  costs  and  expenses  of  the  opposition  until  the  time 
of  the  compromise,  were  held  to  have  adopted  the  agreement, 
whether  it  would  have  been  otherwise  binding  upon  them  or 
not.5 

SECTION    III. 
Subscribers  to  the  Preliminary  Association  inter  sese. 

1.  Liability  for  acts  of  directors  limited  by    5.  Not  liable  for  expenses  except  by  terms  of 
terms  of  subscription.  agreement. 

2.  Association  not  binding  until  prelimina-    6.  Deeds  of  association  generally  make  pro- 
ries  are  complied  with.  vision. 

3.  Contracts,  how  far  controlled  by  oral  rep-  !  7.  One  who  obtains  shares,  without  executing 
resentations  of  directors.  the  deed,  not  bound  to  contribute. 

4.  Subscribers  not  excused  by  directors  from    n.  11.    No  relation  of  general  partnership 
paying  calls.  subsists  between  subscribers. 

§  4.    1.  The  project  for  a  railway  being  set  on  foot  by  a  pro- 

2  Wallingford  Manufacturing  Co.  v.  Fox,  12  Vt.  R.  304  ;  Goddard  v.  Pratt,  16 
Pick.  412,  where  it  is  held,  the  original  copartners  are  still  liable,  upon  contracts 
made  with  third  parties,  ignorant  of  the  dissolution  by  the  effect  of  the  incorpo- 
ration, the  company  having  carried  on  business  in  the  name  of  the  partnership. 

3  AVheelock  v.  Moulton,  15  Vt.  R.  519. 

4  Dance  v.  Girdler,  4  Bos.  &  P.  34.     See  Gittings  v.  Mayhew,  6  Md.  R.  113. 

5  Williams  v.  St.  George's  Harbor  Co.,  2  De  G.  &  J.  547  ;  s.  c.  4  Jur. 
N.  S.  1066. 


12  PRELIMINARY   ASSOCIATIONS.  §  4. 

visional  committee  of  directors  or  managers,  the  subscribers 
may  insist  *  upon  the  terms  of  subscription.  The  subscribers 
are  not  bound  by  any  special  undertaking  of  the  directors,  or 
any  portion  of  them,  beyond  or  aside  of  the  powers  conferred 
by  the  terms  of  the  deed  or  contract  of  association.1 

2.  And  the  association  is  not  binding,  until  the  provisions  by 
which  it  is,  by  its  own  terms,  to  become  complete,  are  complied 
with.  If  before  that  the  scheme  be  abandoned,  the  provisional 
subscribers,  or  allottees,  may  recover  back  their  deposits  of  the 
provisional  committee,  in  an  action  for  money  had  and  received.2 
So,  too,  if  one  is  induced  to  accept  of  shares  in  the  provisional 
company,  by  fraudulent  representations,  he  may  recover  back 
the  whole  of  his  deposits.3 

3.  But  if  one  actually  become  a  subscriber,  he  is  bound  by 
the  terms  of  subscription,  without  reference  to  prior  oral  repre- 
sentations, and  must  bear  a  portion  of  the  expense  incurred,  if 
the  subscription  so  provide.4  But  if  the  directors,  in  such  pro- 
visional company,  in  order  to  induce  subscriptions,  promise  the 
subscriber,  that  in  the  event  of  no  charter  being  obtained,  he 
shall  be  repaid  his  entire  deposit,  this  contract  is  binding  upon 
them,  and  may  be  enforced  by  action,  notwithstanding^  the  sub- 
scriber's  agreement   authorized  the   directors    to   expend    the 

oney  in  the  mode  they  did.6 

4.  But  the  contract  of  the  directors  will  not  excuse  the  sub- 
scriber from  paying  calls,  if  the  terms  of  the  subscriber's  agree- 
ment require  it.6  The  contract  of  the  directors  in  such  case, 
and  the  deed  of  association,  are  wholly  independent  of  each 
other,  and  neither  will  control  the  other.7 

1  Londesborough  ex  parte,  27  Eng.  L.  &  Eq.  292 ;  Ex  parte  Mowatt,  1 
Drewry,  247. 

2  Walstab  v.  Spottiswoode,  4  Railway  C.  321. 

3  Jarrettv.  Kennedy,  6  C.  B.  319. 

4  Watts  v.  Salter,  10  C.  B.  477.  And  if  one  subscribe  the  agreement  and 
parliamentary  contract,  he  will  be  liable,  although  he  have  not  received  the 
shares  allotted  to  him  or  paid  the  deposits.  Ex  parte  Bowen,  21  Eng.  L.  &  Eq. 
422. 

5  Mowatt  v.  Londesborough,  25  Eng.  L.  &  Eq.  25  ;  s.  c.  in  error,  28  Eng. 
L.  &  Eq.  119 ;  Ward  v.  Same,  22  Eng.  L.  &  Eq.  402. 

5  Ex  parte  Mowatt,  1  Drewry,  247. 

T  Dover  &  Deal  Railway,  ex  parte  Mowatt,  19  Eng.  L.  &  Eq.  127. 
*636 


§  4.  SUBSCRIBERS   TO   PRELIMINARY  ASSOCIATION.  13 

5.  But  it  has  been  held,  that  persons,  by  taking  shares  in  a 
projected  railway,  do  not  bind  themselves  to  pay  any  expense 
incurred,  unless  it  is  so  provided  in  the  preliminary  contracts  of 
association,  or  the  expense  is  incurred  with  their  sanction  and 
upon  their  credit.8  And  *even  where  such  shareholder  consents 
to  act  on  the  provisional  committee,  it  will  not  render  him 
liable,  as  a  contributory,  to  the  expense  of  the  company.9 

6.  But  in  general,  the  form  of  the  deeds  of  association  is 
such,  that  if  one  takes  shares  without  reservation,  he  is  to  be 
regarded  as  a  contributory  to  the  expense,10  and  especially 
where  he  acts  as  one  of  the  provisional  committee,  and  also 
accepts  shares  alloted  to  him.10 

7.  But  one  who  has  obtained  shares  in  a  projected  railway 
company,  but  without  executing  the  deed  of  settlement,  or  any 
deed  referring  to  it,  was  held  not  liable  to  contribute  to  the 
expense  incurred,  in  attempting  to  put  the  company  in  opera- 
tion,11 and  especially  if  the  acceptance  of  the  shares  is  condi- 
tional, upon  the  full  amount  of  the  capital  of  the  company  being 
subscribed,  which  was  never  done.11 

8  Maudslay  ex  parte,  1  Eng.  L.  &  Eq.  6 1 . 

9  Carmichael  ex  parte,  1  Eng.  L.  &  Eq.  66  ;  Clarke  ex  parte,  id.  69. 

10  Burton  ex  parte,  13  Eng.  L.  &  Eq.  435  ;  Markwell  ex  parte,  13  Eng.  L. 
&  Eq.  456;  UpfilPs  case,  1  Eng.  L.  &  Eq.  13;  Watts  v.  Salter,  12  Eng. 
L.  &  Eq.  482.  See  also  St.  James's  Club  in  re,  13  Eng.  L.  &  Eq.  589, 
as  to  the  effect  of  proof,  of  the  subscriber  being  present  "when  a  resolution  is 
passed. 

11  The  Galvanized  Iron  Co.  v.  Westoby,  14  Eng.  L.  &  Eq.  386. 

It  was  formerly  considered,  that  all  persons  engaged  in  obtaining  a  bill  in 
parliament  for  building  a  railway,  were  partners  in  the  undertaking,  and  for 
that  reason  a  subscriber,  who  acted  as  their  surveyor,  could  not  maintain  an 
action  for  work  and  labor,  done  by  him  in  that  character,  against  all  or  any  one 
of  the  subscribers.  Holmes  v.  Higgins,  1  B.  &  C.  74.  See  also  Goddard  v. 
Hodges,  1  C.  &  M.  33. 

But  it  is  now  regarded  as  well  settled,  in  all  the  courts  in  Westminster  Hall, 
that  there  subsists  between  the  subscribers  to  such  an  enterprise  no  relation  of 
general  partnership  whatever,  and  no  power  to  bind  each  other  for  expenses 
incurred  in  carrying  forward  the  enterprise.  Each  binds  himself  only  by  his 
own  acts  and  declarations,  unless  he  acts  by  virtue  of  some  authority  conferred 
by  the  deeds  of  association.  Parke,  Baron,  in  Bright  v.  Hutton,  3  H.  L.  Cases, 
341,  368.  And  an  agreement,  aside  of  the  deed  of  association,  that  one  of  the 
promoters  shall  indemnify  another,  is  held  valid.  Connop  v.  Levy,  5  Railway  C. 
124;  s.  c.  11  Q.  B.  769.  But  a  general  indemnity  against  costs  will  only  ex- 
*637  * 


14  PRELIMINARY   ASSOCIATIONS.  §  5. 

*  SECTION    IV. 
Contracts  of  the  Promoters  adopted  by  the  Company. 

1.  Liability  may  be  transferred  icith  assent  of\  n.  3.  Powers  of  provisional  company  to  con- 
creditors.  I      tract  limited  by  statute. 

§  5.  1.  The  company  when  fully  incorporated  may  assume  the 
liabilities  of  the  preliminary  association,  incurred  in  obtaining 

tend  to  costs  in  suits  lawfully  brought.     Lewis  v.  Smith,  2  Shelford,  Bennett's 
ed.  1030. 

And  in  regard  to  liability,  for  expenses  incurred  in  carrying  forward  railway 
projects,  it  often  happens,  that  one  who  has  been  active  may  thereby  make  him- 
self liable  to  tradesmen  and  others  who  have  performed  service  in  behalf  of  the 
enterprise,  upon  the  expectation  he  would  see  them  paid.  In  Lake  v.  Duke  of 
Argyll,  6  Q.  B.  477,  479,  Denman,  Ch.  J.,  said  :  "  But  when  persons  meet  to  pre- 
pare the  measures  necessary  for  calling  the  society  into  existence,  attendance  on 
such  meeting,  and  concurrence  in  such  measures,  may  be  strong  evidence,  that  any 
individual  there  present,  and  taking  part  in  the  proceedings,  held  himself  out  as 
a  paymaster  to  all  who  executed  their  orders ;  and  though  not  liable  as  a  mem- 
ber or  shareholder,  yet  his  declared  intention  to  become  the  president,  or  a 
member,  in  whatever  event,  or  to  take  a  share  under  any  conditions,  may  be 
material  evidence  to  show  that  he  authorized  contracts  with  those  whose  ser- 
vices were  required  by  what  may  be  called  the  constituent  body." 

But  a  charge  to  the  jury,  that  before  surveyors,  in  such  case,  could  recover  of 
the  provisional  committee,  they  must  be  satisfied  that  defendants  did,  by  them- 
selves or  their  agent,  employ  the  plaintiff  to  do  the  work,  or  that,  being  informed 
of  their  having  done  it,  on  their  credit,  by  the  employment  of  some  one  not  au- 
thorized, they  consented  to  be  held  liable,  was  affirmed  in  the  Exchequer 
Chamber.  Kevins  v.  Henderson,  5  Railway  C.  684 ;  "Williams  v.  Pigott,  5 
Railway  C.  544.  See  also  Spottiswoode's  case,  39  Eng.  L.  &  Eq.  520. 
Since  the  publication  of  the  second  edition,  the  English  courts  have  made  nu- 
merous decisions  bearing  upon  the  general  subject  discussed  in  this  note.  In 
Maddick  v.  Marshall,  10  Jur.  N.  S.  1201,  the  defendant  was  employed  by  the 
parties  in  interest  to  act  as  provisional  director  in  connection  with  others,  under 
the  assurance  from  the  solicitor  of  such  parties,  that  they  were  safe  and  would 
incur  no  personal  responsibility  ;  and  the  directors  thereupon  appointed  the  prin- 
cipal party  in  interest  secretary,  and  passed  a  resolution  to  advertise,  which 
resolution  was  signed  by  the  defendant  as  director.  The  plaintiff  upon  taking 
the  order  was  shown  the  resolution  certified  by  the  defendant  as  authority  for 
the  order.  The  court  held  this  testimony  for  the  jury,  tending  to  show  a  per- 
sonal undertaking  by  defendant,  and  that  they  could  not  disturb  a  verdict 
against  him.  See  also  Swan  v.  The  North  British  Australasian  Co.,  8  Jur.  N.  S. 
940,  as  to  what  acts  will  create  an  estoppel  in  such  cases. 
*»638 


§  5.  CONTRACTS  OF  PROMOTERS  ADOPTED.  15 

the  special  act,  or  as  is  sometimes  the  case,  where  the  associa- 
tion make  an  assignment  of  their  property.1  But  even  an 
express  provision  in  the  charter,   that   the  company   shall  be 

Under  the  English  statute,  all  the  subscribers  are  constituted  directors  until 
they  designate  who  shall  act  in  that  capacity,  and  have  authority  to  appoint  one 
of  their  number  to  an  office  in  the  company.  Eales  v.  The  Cumberland  Black 
Lead  Mine  Co.  7  Jur.  N.  S.  169. 

It  seems  to  be  considered  essential,  in  order  to  fix  the  liability  of  a  subscriber 
to  the  articles  of  association  on  that  ground  alone,  that  the  subscription  should 
be  in  his  own  handwriting  and  not  by  procuration  merely.  Richardson  ex  parte, 
4  Law  T.  N.  S.  589.  The  company  are  not  bound  to  give  notice  of  the  ai- 
lotment  of  shares  in  order  to  bind  the  subscriber  to  take  them.  It  is  his  duty 
to  take  notice  of  the  allotment,  and  to  make  payment  of  all  future  dues  fixed  by 
law  or  the  terms  of  the  contract.  Bloxam  ex  parte,  10  Jur.  N.  S.  814.  But  in 
order  to  render  the  allottee  liable  to  pay  calls  on  shares  they  should  be  specifi- 
cally numbered  and  appropriated  by  number.  Irish  Peat  Co.  v.  Phillips,  7  Jur. 
N.  S.  413  ;  s.  c.  affirmed  7  Jur.  N.  S.  1189, 1  B.  &  S.  598.  But  semble  he  may 
be  estopped  to  deny  his  membership.  So  too  it  was  considered  in  this  case, 
that  in  order  to  bind  an  associate  to  pay  future  calls,  it  was  essential  that  he 
should  have  subscribed  the  deed  of  association. 

The  provision  of  the  English  statute  as  to  the  period  within  which  the  register 
of  shareholders  shall  be  made  and  sealed  is  regarded  as  directory,  so  far  as  the 
liability  of  shareholders  is  concerned,  and  they  will  not  be  exonerated  from  re- 
sponsibility by  a  failure  of  the  company  to  comply  with  the  direction.  W.  N. 
W.  Co.  v.  Hawksford,  11  C.  B.  N.  S.  456  ;  8  Jur.  N.  S.  844  in  Exchequer 
Chamber. 

The  company,  when  fully  incorporated,  may  sue  in  their  own  name  upon 
calls  made  by  the  directors  of  the  preliminary  incorporation.  Hull  Co.  v.  Wel- 
lesley,  6H.&N.  38. 

A  registered  shareholder  in  a  company,  which  was  afterwai'ds  incorporated 
with  a  new  company,  is  entitied  to  be  regarded  as  a  shareholder  in  the  new 
company,  if  the  act  of  incorporation  so  provide,  although  he  may  not  have 
exchanged  his  certificate  for  shares  in  the  old  company  for  those  in  the  new  com- 
pany. Spackman  v.  Lattimore,  3  Giff.  16  ;  8.  C.  7  Jur.  N.  S.  179.  It  was  fur- 
ther decided  in  this  case,  that  the  subscribers  could  not  charge  their  own  sub- 
scriptions against  the  company  as  money  advanced  for  their  benefit. 

Where  a  subscriber  has  paid  for  the  expenses  of  the  promoters  all  that  the 
terms  of  association  required,  he  cannot  be  charged  further,  because  he  made 
the  payment  without  taxation.     Croskey  v.  Bank  of  Wales,  4  Gif.  314. 

The  property  in  shares  vests  in  the  subscriber  upon  the  execution  of  the  deed 
and  complete  registration  of  the  company,  and  the  delivery  of  scrip  certificates 
is  not  requisite  to  vesting  the  shares,  but  they  are  to  be  regarded  merely  as  the 
indicia  of  property.     Hunt  v.  Gunn,  3  F.  &  F.  223. 

1  Haslett's  Ex'rs  v.  Wotherspoon,  1  Strob.  Eq.  209 ;  Salem  Mill  Dam  Co. 
v.  Ropes,  6  Pick.  23. 


16  PRELIMINARY  ASSOCIATIONS.  §  6. 

solely  liable  for  the  debts  of  the  association,  will  not  exonerate 
the  association  unless  by  the  consent  of  the  creditors.2  But 
when  the  company  assume  the  debts  of  the  association,  by  the 
assent  of  their  creditors,  they  will  be  relieved.3 


SECTION    V. 

How  contracts  of  the  Promoters  may  be  adopted  by  the 
company. 

Cannot  assume  the  benefit  without  the  burden. 

§  6.  Wherever  a  third  party  enters  into  a  contract  with  the 
promoters  of  a  railway,  which  is  intended  to  enure  to  the  ueneht 

2  Witiner  v.  Schlatter,  2  Rawle,  359. 

3  Whitwell  v.  Warner,  20  Vt.  R.  425.  But  by  the  English  statutes  com- 
panies provisionally  registered  are  not  allowed  to  make  any  contract,  not  indis- 
pensable to  carrying  forward  the  project  to  full  registration.  And  where  the 
directors  of  such  a  company  contracted  for  plans,  sections,  and  books  of  refer- 
ence, to  the  value  of  £3,000,  it  was  held  a  violation  of  the  statute  and  illegal, 
and  that  no  recovery  could  be  had  upon  it.  Bull  v.  Chapman,  20  Eng.  L.  Eq. 
488;  7  &  8  Vict.  ch.  110. 

A  contract  made  between  the  projector  and  the  directors  of  a  company  pro- 
visionally registered,  but  not  in  terms  made  conditional  on  the  completion  of  the 
company,  is  not  binding  upon  the  subsequently  completely  registered  company, 
although  ratified  and  confirmed  by  the  deed  of  settlement.  Gunn  v.  London 
and  Lancashire  Assurance  Co.,  12  C.  B.  N.  S.  694. 

The  promoters  of  a  railway  company  agreed  with  the  tenant  for  life  of  setded 
estates  to  pay  him  £20,000  for  obtaining  his  support  to  their  scheme.  This 
agreement  was  afterwards  adopted  by  the  provisional  committee  of  a  sec- 
ond company,  which  stood  in  place  of  the  first.  The  second  company's  bill 
passed,  and  an  indenture  was  made  under  the  company's  seal,  by  which,  on  the 
ground  of  doubts  as  to  the  absolute  right  of  the  tenant  for  life  to  the  £20,000, 
the  company  was  to  retain  the  sum  and  pay  interest  on  it.  Interest  was  paid  for 
some  years,  but  at  length  the  company  refused  to  make  any  further  payment. 
Upon  a  bill  by  a  subsequent  tenant  for  life  of  the  estates  to  have  the  company's 
liability  declared,  and  obtain  payment  of  the  £20,000  for  the  benefit  of  the 
settled  estate  :  Held  that  the  contract  was  ultra  vires,  and  could  not  be  en- 
forced. 

Held  also  that  this  was  not  withim  the  meaning  of  the  Companies'  Clauses 
Consolidation  Act,  sec.  65,  as  being  in  respect  of  "costs  incurred  in  obtaining 
the  special  act,  and  incident  thereto."  Lord  Shrewsbury  v.  North  Staffordshire 
R.  R.  C,  V.  C.  Kindersley;  12  Jurist  N.  S.  63. 


§  7.  CONTRACTS   BETWEEN   PROMOTERS   AND   OPPOSERS.  17 

of  the  company,  and  they  take  the  benefit  of  the  contract,  they 
will  be  bound  to  perform  it,  upon  the  familiar  principle  that  one 
*  who  adopts  the  benefit  of  an  act,  which  another  volunteers  to 
perform  in  his  name  and  on  his  behalf,  is  bound  to  take  the 
burden  with  the  benefit.1 


SECTION    VI. 

Contracts  between  the  Promoters  and,  Opposers  of  a  BUI  for 
the  Charter  of  a  Railway. 

1 .  English  cases  numerous.  12-5.  Lord  Eldon's  opinion,  in  case  of  Vaux- 

I      hall  Bridge  Co. 

§  7.  1.  The  cases  in  the  English  books  upon  the  subject  of 
contracts  between  the  promoters  of  railway  projects  in  parlia- 
ment and  those  who  have  counter  interests,  and  who  are  ready 
to  persist  in  opposition  to  such  projects  unless  they  can  secure 
some  compromise  with  the  promoters,  are  considerably  numer- 
ous, and  involve  a  question  of  no  inconsiderable  importance. 
We  shall  therefore  examine  them  somewhat  in  detail. 

2.  One  of  the  earliest  cases  upon  this  subject J  was  decided 
by  the  Lord  Chancellor,  Cottenham,  upon  full  argument,  and 
great  consideration,  as  early  as  1836.  But  as  this  case  pro- 
fesses to  rest  mainly  upon  a  leading  opinion  of  Lord  Chancellor 
Melon,2  upon,  a  somewhat  analogous  subject,  it  may  not  be  im- 
proper here  to  give  the  substance  of  that  decision. 

3.  The  application  to  parliament  for  the  plaintiff's  company, 
if  granted,  it  was  conceded,  would  injuriously  affect  the  tolls 
upon  another  bridge  not  far  distant.  The  proprietors  of  this 
bridge  were  opposing  the  plaintiff's  grant  before  the  parliamen- 
tary committee,  with  a  view  to  secure  some  indemnity  against 

1  Gooday  v.  The  Colchester  &  Stour  Valley  Railway,  15  Eng.  L.  &  Eq. 
596;  Preston  v.  Liverpool  &  M.  Railway,  7  Eng.  L.  &  Eq.  124;  Edwards  v. 
Grand  Junction  Railway,  1  Mylne  &  Cr.  650.  The  cases  in  support  of  this 
general  proposition  are  very  numerous,  and  will  be  more  fully  examined  in  the 
next  section. 

1  Edwards  v.  The  Grand  Junction  Railway,  1  Mylne  &  Cr.  650. 

2  Vauxhall  Bridge  Co.  v.  The  Earl  of  Spencer,  Jacob,  64  (1821). 

2  *639 


18  PRELIMINARY   ASSOCIATIONS.  §  7 

such  loss,  to  be  specially  provided  for  by  the  plaintiff's  act, 
upon  condition  that  the  plaintiffs  should  open  their  bridge  for 
the  public  travel.  The  promoters  of  the  plaintiff's  grant  and 
the  proprietors  of  the  rival  bridge  had  come  to  an  agreement  in 
regard  to  the  extent  of  the  indemnity,  and  upon  naming  it  to 
the  committee,  with  a  view  to  have  it  inserted  in  the  act,  one 
member  of  the  committee  objected  to  such  course,  as  calculated 
to  sanction  improper  influences  upon  public  *  legislation.  The 
promoters  of  the  new  bridge  then  proposed  to  the  proprietors  of 
the  rival  one  to  give  them  security  for  the  proposed  indemnity, 
by  way  of  bond  with  surety  which  should  quiet  their  opposition, 
and  the  bill  pass.  This  was  acceded  to  and  the  securities  given, 
and  the  bill  passed  accordingly.  The  opinion  of  Lord  Eldon  is 
an  affirmance  of  the  decision  of  the  Vice-Chancellor,  retaining 
the  bill  till  the  matter  should  be  tried  at  law.8  But  the  intima- 
tions of  the  Chancellor  indicate  certainly  that  he  regarded  the 
contract  as  perfectly  valid,  and  the  bill  was  afterwards  dismissed 
by  consent.  Lord  Eldon  said,  "  in  the  view  I  take  of  the  case, 
it  will  not  be  an  obstacle  to  the  plaintiffs  that  they  do  not  come 
with  clean  hands,  for  it  is  settled,  that  if  a  transaction  be  objec- 
tionable, on  grounds  of  public  policy,  the  parties  to  it  may  be 
relieved  ;  the  relief  not  being  given  for  their  sake,  but  for  the 
sake  of  the  public.  Thus  it  is  in  the  case  of  marriage  brocage 
bonds.  The  principle  was  much  discussed  in  the  case  of  Neville 
v.  Wilkinson,4  where  Mr.  Neville  being  about  to  marry,  inquiry 
was  made  by  the  lady's  father  to  what  extent  he  was  indebted. 
Wilkinson,  who  was  applied  to  at  the  desire  of  Neville,  concealed 
a  demand  which  he  had  against  him  ;  after  the  marriage  he  at- 
tempted to  recover  it,  and  a  bill  was  filed  to  restrain  him.  I 
remember  arguing  it  with  obstinacy,  but  Lord  Thurlow  thought 
that,  having  made  a  misrepresentation,  a  court  of  equity  must 
hold  him  to  it,  and  that,  although  the  plaintiff  was  a  particeps 
criminis ;  so  it  was  held  in  the  case  of  Shirley  v.  Ferrers,5  in  the 
Exchequer. 

4.    "  It  is  argued  that  this  was  a  fraud  upon  the  legislature, 
but  I  think  it  would  be  going  a  great  way  to  say  so,  for  non 

3  s.  c.  2  Mad.  35G.  4  1  Br.  C.  C.  543. 

5  Cited  11  Vesey,  53G. 
*640 


§  7.  CONTRACTS   BETWEEN   PROMOTERS   AND   OPPOSERS.  19 

constat,  if  it  had  been  pushed  to  the  extent  of  taking  the  opinion 
of  the  house,  that  it  might  not  have  passed  the  bill  in  its  former 
shape.  It  cannot  be  said  that  the  agreement  is  contrary  to  leg- 
islative policy,  because  one  member  of  the  committee  makes  an 
objection,  which  is  not  sanctioned  or  known  by  the  house  at 
large.  Indeed,  such  things  are  constantly  done,  and  with  the 
knowledge  of  the  house  ;  for  they  are  in  the  habit  of  saying, 
with  respect  to  these  private  acts,  that  though  they  will  not  of 
themselves  pass  them  into  laws,  yet  they  will  if  the  parties  can 
agree  ;  and  matters  sometimes  are  permitted  to  stand  over  to 
give  an  opportunity  of  coming  to  a  settlement.    . 

5.  "  It  is  then  said,  that  the  money  was  to  be  paid  out  of  the 
funds  *  of  the  Vauxhall  Bridge  Company,  which  by  the  act 
were  devoted  to  other  purposes.  The  proprietors  of  Battersea 
Bridge,  however,  say  that  they  have  nothing  to  do  with  the 
funds  of  the  company  ;  that  they  have  contracted  with  a  num- 
ber of  independent  persons,  to  whom  they  look  for  the  payment 
of  the  bonds  ;  and  if  the  obligors  agree  with  the  company  to  pay 
the  bonds  with  their  money,  what  have  the  obligees  to  do  with 
that,  unless  by  antecedent  contract  ?  They  had  no  demand  in 
law  or  equity  against  the  company.  If,  then,  the  Vauxhall  pro- 
prietors choose  to  sanction  what  the  legislature  has  not  directed, 
namely,  the  indemnifying  the  persons  who  have  become  obligors 
in  the  bonds,  that  is  one  thing  ;  if  they  have  not,  then,  the  indi- 
vidual officers  who  have  paid  the  money  over  in  discharge  of  the 
bonds  ought  not  to  have  paid  it,  and  may  now  be  called  on  to 
pay  it  back  ;  as  between  them  and  the  company,  the  money 
must  be  considered  as  being  still  in  their  hands.  If  the  trans- 
action is  to  be  considered  merely  as  between  the  obligors  and 
the  obligees,  the  latter  not  refusing  the  money  from  whatever 
hands  it  came,  but  not  entangling  themselves  in  any  contracts 
between  the  obligors  and  the  company,  then  the  obligees  would 
not  be  affected  by  those  contracts.  But  if  so,  still  the  case  de- 
pends upon  the  validity  of  the  bonds  ;  for  I  think  the  Vauxhall 
Bridge  Company  may  with  propriety  say,  if  the  money  was 
paid  in  consequence  of  an  arrangement  for  the  discharge  of  the 
bonds,  and  if  the  bonds  were  bad,  that  then  it  may  be  called 
back.     When  the  cause  was  heard  by  the  Vice-Chancellor,  he 

*641 


20  PRELIMINARY  ASSOCIATIONS.  §  8. 

did  that  which  he  was  not  bound  to  do  ;  for  he  certainly  had 
jurisdiction,  and  might  have  decided  upon  the  validity  of  the 
bonds.  But  he  directed  that  to  be  tried  at  law,  where  all  the 
objections  may  be  raised  upon  the  pleadings  in  the  same  manner 
as  here ;  and  considering  that,  in  matters  of  this  nature,  both 
courts  of  law  and  equity  have  jurisdiction  exercised  upon  the 
same  principles,  I  do  not  see  any  occasion  to  vary  the  decree." 


SECTION    VII. 

Contracts  of  the  Promoters  enforced  in  Equity, 

1-3.    Case  of  Edwards  v.  Grand  Junction  Railway. 

§  8.  1.  Edwards  v.  The  Grand  Junction  Railway,1  is  an  appli- 
cation to  a  court  of  equity  to  enforce  such  a  contract  against  a 
railway  *  company,  whose  charter  was  obtained,  by  means  of  the 
quieting  opposition  in  parliament,  in  conformity  to  the  contract. 
The  trustees  of  a  turnpike  road  were  opposing  in  parliament  the 
grant  to  the  defendants,  unless  their  rights  were  guaranteed  in 
such  grant.  The  promoters  of  defendants'  charter,  and  the  trus- 
tees of  the  turnpike  road,  came  to  an  agreement  in  regard  to  the 
proper  indemnity  to  be  inserted  in  the  act,  but  to  save  delay  it 
was  secured  by  way  of  contract,  on  the  part  of  the  promoters, 
providing  for  a  renewal  of  the  covenants,  on  the  part  of  the  com- 
pany, in  a  brief  time  specified,  after  it  should  go  into  operation. 
The  controversy  in  the  present  case  was  with  reference  to  the 
width  of  a  bridge,  by  which  the  railway  proposed  to  convey  the 
turnpike  road  over  their  track.  The  contract  stipulated  that  such 
viaducts  should  be  of  the  same  width  as  the  road  at  that  point, 
which  was  fifty  feet.  The  charter  only  required  them  to  be  of 
the  width  of  fifteen  feet,  and  the  company  having  declined  to 
assume  the  contract  of  the  promoters,  were  proceeding  to  build 
the  bridges  thirty  feet  wide  only.  The  bill  prayed  an  injunction, 
which  was  granted  by  the  vice-chancellor,  and  confirmed  by  the 
chancellor,  who  held  that  an  agreement  to  withdraw  or  withhold 
opposition  to  a  bill  in  parliament  is  not  illegal ;  and  a  court  of 

1  1  My.  &  Cr.  G50. 
*642 


§  8.  CONTRACTS  ENFORCED  IN  EQUITY.  21 

equity  will  enforce  a  contract  founded  upon  such  a  consideration  ; 
and  that  an  incorporated  company  will  he  bound  hy  the  agree- 
ment of  its  individual  members,  acting,  before  incorporation,  on 
its  behalf,  if  the  company  had  received  the  full  benefit  of  the 
consideration,  for  which  the  agreement  stipulated,  in  its  behalf. 
The  opinion  of  the  Lord  Chancellor  will  best  show  the  grounds 
of  the  decision.  "  But  then  the  railway  company  contend,  that 
they,  being  now  a  corporation,  are  not  bound  by  anything  which 
may  have  passed,  or  by  any  contract  which  may  have  been  en- 
tered into  by  the  projectors  of  the  company  before  their  actual 
incorporation. 

2.  "  If  this  proposition  could  be  supported,  it  would  be  of  ex- 
tensive consequence  at  this  time,  when  so  much  property  becomes 
every  year  subjected  to  the  power  of  the  many  incorporated 
companies.  The  objection  rests  upon  grounds  purely  technical, 
and  those  applicable  only  to  actions  at  law.  It  is  said  that  the 
company  cannot  be  sued  upon  this  contract,  and  that  Moss  en- 
tered into  a  contract,  in  his  own  name,  to  get  the  company,  when 
incorporated,  to  enter  into  the  proposed  contract.  It  cannot  be 
denied,  however,  that  the  act  of  Moss  was  the  act  of  the  project- 
ors of  the  railway  ;  it  is,  therefore,  the  agreement  of  the  parties 
who  were  seeking  an  act  of  incorporation,  that,  when  incorpo- 
rated, certain  things  should  *  be  done  by  them.  But  the  ques- 
tion is,  not  whether  there  be  any  binding  contract  at  law,  but 
whether  this  court  will  permit  the  company  to  use  their  powers 
under  the  act,  in  direct  opposition  to  the  arrangement  made  with 
the  trustees  prior  to  the  act,  upon  the  faith  of  which  they  were 
permitted  to  obtain  such  powers.  If  the  company  and  the  pro- 
jectors cannot  be  identified,  still,  it  is  clear  that  the  company  have 
succeeded  to,  and  are  now  in  possession  of,  all  that  the  projectors 
had  before ;  they  are  entitled  to  all  their  rights,  and  subject  to 
all  their  liabilities.  If  any  one  had  individually  projected  such  a 
scheme,  and  in  prosecution  of  it  had  entered  into  arrangements, 
and  then  had  sold  and  resigned  all  his  interest  in  it  to  another, 
there  would  .be  no  legal  obligation  between  those  who  had  dealt 
with  the  original  projector  and  such  purchaser  ;  but  in  this  court 
it  would  be  otherwise.  So  here  as  the  company  stand  in  the 
place  of  the  projectors,  they  cannot  repudiate  any  arrangements 

*643 


22  PRELIMINARY   ASSOCIATIONS.  §  8. 

into  which  such  projectors  had  entered.  They  cannot  exercise 
the  powers  given  by  parliament  to  such  projectors,  in  their  cor- 
porate capacity,  and  at  the  same  time  refuse  to  comply  with 
those  terms,  upon  the  faith  of  which  all  opposition  to  their  ob- 
taining such  powers  was  withheld.  The  case  of  The  East  Lon- 
don Water  Works  Company  v.  Bailey,  4  Bing.  283,  was  cited  to 
prove  that,  save  in  certain  excepted  cases,  the  agent  of  a  corpo- 
ration must,  in  order  to  bind  the  corporation,  be  authorized  by  a 
power  of  attorney  ;  but  it  does  not  therefore  follow  that  corpora- 
tions are  not  to  be  affected  by  equities,  whether  created  by  con- 
tract or  otherwise,  affecting  those  to  whose  position  they  succeed, 
and  affecting  rights  and  property  over  which  they  claim  to  exer- 
cise control.  What  right  have  the  company  to  meddle  with  the 
road  at  all  ?  The  powers  under  the  act  give  them  the  right ;  but 
before  that  right  was  so  conferred,  it  had  been  agreed  that  the 
right  should  only  be  used  in  a  particular  manner.  Can  the  com- 
pany exercise  the  right  without  regard  to  such  an  agreement  ? 
I  am  clearly  of  opinion  that  they  cannot ;  and  having  before 
expressed  my  opinion  that  the  contract  is  sufficiently  proved,  it 
follows  that  the  injunction  granted  by  the  vice-chancellor  is  in 
my  opinion  proper,  and  that  this  motion  to  dissolve  it  must  be 
refused  with  costs." 

3.  "  The  case  of  The  Vauxhall  Bridge  Company  v.  Earl  Spen- 
cer, 2  Mad.  356,  Jac.  64  (4  Cond.  Cha.  Rep.  28),  was  cited  for 
the  trustees ;  and  it  certainly  is  a  strong  authority  in  favor  of 
their  claim;  Lord  Eldon  having  in  that  case  expressed  an  opinion, 
that  the  withdrawing  opposition  to  a  bill  in  parliament  might  be 
a  good  *  consideration  for  a  contract,  and  having  recognized  the 
right  of  an  incorporated  company  to  connect  itsejf  with  a  con- 
tract made  by  the  projectors  of  the  company,  before  the  act  of 
incorporation.  On  the  other  hand  Dance  v.  Girdler,  1  Bos.  & 
Full.  X.  R.  34,  was  cited  for  the  railway  company ;  but  that 
was  an  attempt  to  make  a  surety  liable  beyond  his  contract ; 
and  Sir  James  Mansfield,  in  his  judgment  in  that  case,  relied 
much  upon  the  want  of  identity  between  the  society  with  whom 
the  contract  was  made  and  the  corporation ;  and  the  question 
there  was  as  to  a  legal  liability,  not  as  to  an  equitable  right.  It 
was  contended  for  the  railway  company  that,  to  enforce  this 

*644 


§  9.  CONTRACTS   OF   PROMOTERS   BIND   THE   COMPANY.  23 

equity  would  be  unjust  towards  the  shareholders  of  the  company 
who  had  no  notice  of  the  arrangement.  To  this  two  obvious 
answers  may  be  made  ;  first,  that  the  court  cannot  recognize  any 
party  interested  in  the  corporation,  but  must  look  to  the  rights 
and  liabilities  of  the  corporation  itself ;  and,  secondly,  that  there 
is  nothing  in  the  effect  of  the  injunction  inconsistent  with  the 
provisions  of  the  act ;  for  although  the  act  provides  that  bridges 
shall  not  be  less  than  fifteen  feet  in  width,  it  does  not  provide 
that  they  shall  not  be  made  wider.  The  company  might  under 
this  act  clearly  agree  that  this  or  any  other  bridge  should  be  fifty 
feet  wide." 

SECTION    VIII. 

Contracts  of  the  Promoters  binding'  upon  the  Company  at  Law. 

1  -  3 .   Case  of  Howden  v.  Simpson . 

§  9.  1.  We  have  next  in  order  of  time  the  important  case  of 
Simpson  v.  Lord  Howden,1  before  the  Master  of  the  Rolls,  and 
the  Lord  Chancellor  on  appeal,  where  it  is  held,  that  equity  will 
not  interfere  to  decree  the  surrender  of  an  illegal  contract,  where 
the  illegality  appears  upon  the  face  of  the  contract,  the  remedy 
at  law  being  adequate.  We  have  then  the  same  case,  at  law,  be- 
fore the  Queen's  Bench,2  and  decided,  on  full  argument,  where  it 
is  held,  that  a  contract  to  pay  Lord  Howden  £5,000,  in  consid- 
eration of  his  withdrawing  opposition  to  a  bill  for  incorporating 
"  The  York  &  North  Midland  Railway  Company,"  he  being  a 
peer  in  *  parliament,  and  owning  estates  in  the  vicinity  of  the 
proposed  line,  was  illegal,'  being  a  fraud  upon  the  legislature. 
This  decision  was  subsequently  reversed  in  the  Exchequer  Cham- 
ber.3   The  case  being  the  leading  case  upon  the  subject,  at  law 

1  1  Railway  Cases,  326  (1837)  ;  1  Keen,  583;  3  Mylne  &  Cr.  97. 

2  10  Ad.  &  Ellis,  793. 

3  The  case  was  reversed  mainly  on  the  ground  that  the  plea  did  not  allege 
that  the  parties,  at  the  time  of  entering  into  the  contract,  intended  to  keep  it 
secret  from  the  legislature.  10  Ad.  &  Ellis,  793;  1  Railw.  C.  347.  But  the  Ex- 
chequer Chamber  held  that  the  agreement  on  the  face  of  it  was  valid,  and  that 
the  plaintiff  was  not  bound  to  communicate  to  the  legislature  the  bargain  he  had 
made  with  the  company,  and  that  a  member  of  the  legislature  could  make  any 

*645 


24  PRELIMINARY   ASSOCIATIONS.  §  9 

certainly,  may  require  a  more  extended  statement.  The  agree- 
ment under  seal,  between  the  plaintiff  and  defendant,  (the  case 
now  standing,  Howden  v.  Simpson,)  recited  that  a  company  had 
been  formed  for  making  a  railway ;  that  defendants  were  pro- 
prietors ;  that  a  bill  had  been  introduced  into  parliament,  ac- 
cording to  which  the  line  would  pass  through  plaintiffs  estates 
and  near  his  mansion,  and  that  he  was  a  dissentient,  and  op- 
posed the  passing  of  the  bill ;  that  defendants  had  proposed  that, 
if  he  would  withdraw  his  opposition,  and  assent  to  the  railway, 
they  would  endeavor  to  deviate  the  proposed  line :  and  plaintiff 
agreed  that,  on  condition  of  the  stipulations  in  the  agreement 
being  performed,  he  did  thereby  withdraw  his  opposition  and 
give  his  assent ;  and  defendants  covenanted  that,  in  case  the 
then  bill  should  be  passed  in  the  then  session,  they  would,  in  six 
months  after  it  received  the  royal  assent,  pay  plaintiff  £ 5,000  as 
compensation  for  the  damage  which  his  residence  and  estates 
would  sustain  from  the  railway  passing  according  to  the  devi- 
ated line,  exclusive  of  and  without  prejudice  to  further  com- 
pensation to  plaintiff,  in  the  event  of  the  deviated  line  not  being 
ultimately  adopted,  and  without  prejudice  to  such  further  compen- 
sation for  any  damage  as  in  the  agreement  after  mentioned. 

2.  Plaintiff  declared  in  debt,  and  averred  that  he  withdrew 
his  opposition  to  the  bill,  which  passed  into  a  law  in  the  then 
session,  that  six  months  had  since  elapsed,  but  that  defendants 
had  not  paid  the  £5,000. 

3.  *  Plea,  that  the  railway,  at  the  time  of  making  the  agree- 
ment, and  according  to  the  act,  was  intended  to  pass  through 
the  lands  of  divers  individuals ;  that  the  agreement  was  made 
privately  and  secretly  by  the  parties  thereto,  without  the  consent 
or  knowledge  of  the  said  individuals,  and  was  concealed  from 
them  continually  until  the  act  was  passed,  and  was  not  disclosed 

terms  for  the  sale  of  his  land,  and  compensation  for  injury  to  his  comforts  and 
property,  which  it  is  lawful  for  a  private  individual  to  make.  The  judgment  of 
the  P^xchequer  Chamber  was  affirmed  in  the  House  of  Lords,  on  full  argument, 
before  the  Chancellor,  Lord  Lyndhurst,  Lord  Brougham,  and  in  the  presence  of 
the  two  chief  justices,  and  ten  of  the  judges.  3  Railw.  Cas.  294.  But  Lord 
Campbell  adhered  to  his  former  opinion  that  the  contract  must  have  been  held 
illegal,  if  it  had  appeared  that  it  was  an  element  in  the  contract  that  it  should 
be  kept  secret,  and  not  communicated  to  parliament. 
*646 


§  10.  CONTRACTS   OF   PROMOTERS  ENFORCED.  25 

to,  or  known  in  parliament,  and  was  concealed  from  the  legisla- 
ture during  the  passing  of  the  act ;  and  that  plaintiff,  at  the 
time  of  passing  the  act,  and  still,  was  a  peer  of  parliament. 


SECTION    IX. 

What  Contracts  between  the  Promoters  of  Railways  and  Others 
will  be  enforced,  either  in  Law  or  Equity,  against  the  Con- 
tracting Parties,  or  the  Company. 

1.   Contract  to  take  land  of  opposing  party.     |   2.   Contract  prejudicial  to  the  public. 

§  10.  1.  Since  the  decison  of  Howden  v.  Simpson,  in  the  Ex- 
chequer Chamber,  and  the  House  of  Lords  (1842),  the  English 
courts  seem  to  have  acquiesced  in  the  principles  there  estab- 
lished, until  a  very  recent  period.  The  validity  of  such  a  con- 
tract is  recognized,  in  regard  to  the  company  purchasing  the 
interest  of  the  lessee  of  lands  near  the  line  of  the  proposed  rail- 
way.1 And  where  the  promoters  of  one  railway  entered  into  an 
agreement  with  a  land-owner  on  the  proposed  line  to  take  his 
land  at  a  specified  price  (20,000/.),  by  which  he  was  induced  to 
withdraw  opposition  ;  and  the  promoters  of  a  rival  line,  who  pro- 
posed also  to  pass  through  the  same  land,  had  petitioned  for  a 
charter,  and  the  merits  of  the  two  projects  were,  under  the  sanc- 
tion of  the  committee  of  the  House  of  Commons,  referred  to 
arbitration,  and  the  solicitors  of  the  two  bills  agreed,  that  the 
adopted  line  should  take  the  engagements  entered  into  with  the 
land-owners,  by  the  rejected  line,  it  was  held,  that  the  second 
company  prevailing,  were  bound,  as  a  condition  of  entering  upon 
the  lands  of  plaintiff,  to  fulfil  the  terms  of  the  agreement  with 
the  first  company.2 

2.  And  where  one  railway  company  was  prohibited  from 
opening  their  line  for  traffic,  until  they  had  built  a  branch  rail- 
way, *  connecting  their  line  with  that  of  another  company,  it 
was  held,  that  a  court  of  equity  was  bound  to  enforce  the  pro- 

1  Doo  v.  The  London  and  Croydon  Railway,  1  Railw.  C.  257. 
*  Stanley  v.  The  Chester  and  Birkenhead  Railw.  1  Railw.  C.  58 ;  9  Simons, 
264. 

*647 


26  PRELIMINARY   ASSOCIATIONS.  §  11 

hibition,  on  motion  of  the  other  company,  though  the  probable 
result  would  be,  to  cause  inconvenience  to  the  public,  and  not 
to  benefit  the  other  company.3 


SECTION    X. 
Courts  of  Equity  will  enforce  Contracts  with  the  Promoters. 

1.  Bona  fide  contract   not   evading  statute,  |  n.  3.  Statement  of  English  cases, 
valid. 

§  11.  1.  The  English  courts  of  equity  do  not  hesitate  to  re- 
strain railways  from  proceeding  to  take  land  under  their  com- 
pulsory powers,  where  the  proprietor  of  the  estates  had  surceased 
opposition  to  the  bill,  by  an  arrangement  with  the  projectors,  by 
which  they  stipulated  that  the  company  should  pay  a  certain 
sum,  which  it  had  declined  to  do.  This  was  done  notwithstand- 
ing the  proprietor  was  a  peer  of  parliament,  and  notwithstanding 
the  tender  of  an  undertaking,  on  the  part  of  the  company,  not  to 
enter  upon  the  land  until  the  further  order  of  the  court,  and 
notwithstanding  the  time,  within  which  the  company,  by  their 
charter,  were  authorized  to  take  land  would  have  expired,  before 
the  hearing  of  the  cause.1  And  although  this  case  is  questioned 
by  some  writers,2  the  learned  Lord  Chancellor  St.  Leonards  said 
the  cases  establish  the  proposition,  that  a  bona  fide  contract  of 
this  sort,  not  evading  the  act  of  parliament,  but  enabling  the  ■ 
company  to  assist  its  views,  and  carry  the  act  into  effect,  was 
valid,  without  reference  to  the  reasonableness  of  the  amount 
agreed  to  be  paid.3 

3  Cromford  and  High  P.  Railway  v.  Stockport,  D.  &  W.  Bridge  Railway,  29 
Law  Times,  245. 

1  Lord  Petre  v.  Eastern  Counties  Railway  Co.,  1  Railw.  C.  462. 

2  Shelford,  400. 

8  Hawkes  v.  Eastern  Counties  Railway  Co.,  15  Eng.  L.  &  Eq.  358;  s.  c. 
before  the  Vice-Chancellor,  4  Eng.  L.  &  Eq.  91,  where  it  is  considered  that 
a  railway  company,  having  agreed  to  purchase  an  estate,  although  moved  to  do 
so  for  the  quieting  of  opposition  to  a  bill  before  parliament  to  enable  them  to 
extend  a  branch  in  a  certain  direction,  which  was  subsequently  abandoned,  were 
nevertheless  bound  to  perform  their  agreement  with  the  owner  of  the  estate. 
See   also  Shelford  on  Railways,  400.     The  case  of  Hawkes   v.  The  Eastern 


§  12.  CONTKACTS  ENFORCED  IF   RAILWAY  ABANDONED.  27 

♦SECTION    XI. 

Such  Contracts  enforced  where  the  Railway  is  abandoned. 

1.   Where  a  certain  sum   is  to  be  paid  to  i  2.  Merely  provisional  contracts  not  always 
quiet  opposition.  enforced. 

§  12.    1.  It  has  sometimes  been  held,  that  an  absolute  agree- 
ment made,  by  the  promoters  of  a  railway,  to  pay  one  a  certain 

Counties  Railway  Co.  came  before  the  Lord  Chancellor,  St.  Leonards,  on  appeal 
from  the  Vice-Chancellor  in  1852,  where  the  whole  subject  of  the  legality  and 
binding  character  of  this  class  of  contracts  is  learnedly  discussed,  as  well  as  the 
propriety  of  decreeing  specific  performances,  and  most  of  the  cases  elaborately 
and  learnedly  reviewed  and  compared.  The  conclusion  to  which  that  eminent 
judge  arrives  is,  that  even  in  a  case  where  the  company  were  not  able  to  carry 
their  project  into  full  effect,  but  had  abandoned  it,  they  were  nevertheless  bound 
specifically  to  perform  contracts  of  this  kind,  and  that  it  was  no  objection  to  de- 
creeing specific  performance,  that  it  would  involve  the  necessity  of  paying  the 
price  of  the  land  out  of  the  general  funds  of  the  company,  which  had  been 
raised  for  provisional  purposes  merely,  and  with  no  view  of  ultimately  purchas- 
ing land  and  building  the  road ;  and  that  the  land  could  be  of  no  use  to  the  com- 
pany under  present  circumstances.  One  can  scarcely  fail  to  perceive  in  this 
case,  that  a  principle,  perhaps  sound  and  just  under  some  circumstances,  is  here 
pushed  quite  to  its  extreme  verge.  Damages  at  law  might  have  been  the  more 
proper  disposition  of  all  interests  concerned. 

The  opinion  of  the  Lord  Chancellor  is  a  masterly  exposition  of  the  view  which 
he  adopts.  After  disposing  of  the  preliminary  questions  he  proceeds :  "  In  the 
case  of  Webb  v.  The  Direct  London  and  Portsmouth  Railway,  9  Eng.  L.  &  Eq. 
249,  there  was  originally  a  decree  for  specific  performance,  and  after  the  de- 
cision in  this  case  was  made,  —  the  court  having  relied  on  that  case,  —  that 
decision  was  reversed.  Now  it  appears  to  me  that  that  case  was  reversed  upon 
the  uncertainty  of  the  contract;  and  if  it  was  reversed  upon  any  other  ground, 
I  should  have  required  further  time  before  I  could  accede  to  the  doctrine  that  a 
company  entering  into  such  a  contract  as  this  is,  could,  upon  any  grounds  of 
supposed  illegality,  get  rid  of  the  contract.  If,  as  in  some  of  these  cases,  several 
of  which  have  been  cited,  the  contract  is  so  worded  that  it  really  depends  upon 
this,  that  the  company  are  not  to  pay  unless  they  require  the  land  ;  that  is,  they 
are  to  pay  when  they  take  the  land,  which  assumes  that  they  are  not  to  pay 
unless  they  do  take  the  land,  —  that  may  be  considered  a  conditional  contract. 
I  have  nothing  to  say  to  such  cases  ;  but  where,  as  in  this  case,  it  is  an  absolute 
and  unqualified  contract  to  take  the  land,  I  should  certainly  hold  that  no  subse- 
quent conduct  on  the  part  of  the  company  could  relieve  them  from  the  obliga- 
tion they  were  bound  by  at  the  time  they  entered  into  it.     The  act  of  parlia- 

*648 


28  PRELIMINARY   ASSOCIATIONS.  §  12. 

sum  to  *  quiet  opposition,  is  valid,  notwithstanding  the  contem- 
plated work  is  never  carried  forward,  and  the  injury  to  the  op- 

ment  having  passed,  this  was  as  good  a  contract  as  a  man  ever  entered  into.  I 
must  look  at  it  at  the  time  when  it  was  executed,  —  at  all  events,  at  the  time 
the  act  passed.  It  contemplated  the  act  passing,  and  the  act  did  pass  exactly  in 
the  terms  pointed  out  in  the  agreement.  Well,  then,  it  is  a  valid  contract. 
Suppose,  as  was  observed  in  argument  very  properly,  suppose  this  agreement 
had  been  entered  into  after  the  passing  of  the  act,  would  any  man  at  the  bar 
say  that  was  a  contract  not  to  be  executed  ?  Looking  at  the  authorities  which 
have  concluded  that  question,  why  should  it  not  be  as  binding,  being  entered 
into  before  the  act  passed,  as  it  must  be  admitted  it  would  have  been  if  executed 
immediately  after  the  act  passed  ?  There  is  no  magic  in  these  things.  The 
good  faith,  the  truth,  and  the  honesty  of  the  transaction  is  to  be  looked  at,  — 
there  is  no  rule  of  law  in  it.  If,  therefore,  Webb  v.  The  Direct  London  and 
Portsmouth  Railway  Company  is  considered  to  decide  anything  adverse  to  the 
decision  in  this  case,  I  should  support  the  decision  of  this  case,  as  far  as  my  au- 
thority went.  With  great  deference  to  others,  I  should  support  this  decision 
certainly  at  the  expense  of  the  contrary  view,  that  is,  contrary  to  the  view  taken 
on  that  appeal,  if  that  were  to  be  so ;  but  I  apprehend  it  turned  on  the  uncer- 
tainty of  the  contract.  In  Lord  James  Stuart  v.  The  London  and  Northwestern 
Railway  Company,  the  Master  of  the  Rolls  there  decreed  a  specific  performance, 
upon  the  authority  of  Webb  v.  The  Direct  London  and  Portsmouth  Railway 
Company,  before  it  was  reversed.  It  was  said  that  the  reversal  of  that  therefore 
displaced  his  authority.  That  also  was  reversed.  There  again  were  two  ques- 
tions :  first,  a  question  whether  there  was  any  concluded  agreement,  —  any 
binding  agreement,  —  anything  amounting  to  a  positive  contract;  and  next, 
there  was  great  delay.  Those  cases  were  relied  upon,  and  I  can  only  repeat 
that  I  am  not  saying  either  of  those  decisions  was  not  a  proper  decision,  and  I 
am  not  called  upon  to  say  that ;  but  I  say,  if  they  are  to  be  considered  in  oppo- 
sition to  a  specific  performance  in  a  case  like  that  before  me,  that  I  should 
totally  disagree  with  them.  It  is  a  new  view  of  the  doctrine  of  this  court,  and 
it  is  a  view  which  could  not  be  supported  consistently  with  the  many  authorities 
which  exist  on  this  subject. 

"  Then  it  is  argued  with  great  force  and  insisted  upon  that  there  is  illegality 
here,  because  the  company  is  applying  its  funds  to  purposes  not  authorized  by 
the  act  of  parliament.  Now,  for  that  several  cases  were  quoted.  MacGregor  v. 
The  Dover  and  Deal  Railway  Company,  17  Jur.  21  ;  s.  c.  16  Eng.  L.  &  Eq. 
180 ;  East  Anglian  Railway  Company  v.  Eastern  Counties  Railway,  21  Law  J. 
Rep.  (n.  s.)  C.  P.  23  ;  s.  c.  7  Eng.  L.  &  Eq.  505  ;  and  the  case  of  Bagshawe 
v.  The  Eastern  Union  Railway  Company,  2  Hall  &  Tw.  201  ;  s.  c.  2  Mac.  & 
Gor.  389.  Those  were  all  cases  in  which  the  company  were  really  going  be- 
yond their  powers  ;  and  one  cannot  but  lament  to  see  great  companies  like 
these,  with  an  attorney  always  at  their  command,  with  every  means  of  consult- 
ing counsel  daily  if  they  think  proper,  and  which  they  resort  to  sufficiently,  and 
with  enormous  capital,  entering  into  a  contract,  with  a  full  knowledge  of  all 
*649 


§  12.     CONTRACTS  ENFORCED  IF  RAILWAY  ABANDONED.       29 

poser,  which  the  *  contract  of  quietus  assumes,  is  never  sus- 
tained.1    But  such  a  contract  is  certainly  based  upon'a  principle 

their  powers,  and  with  legal  advice  constantly  at  command,  turning  round  upon 
the  party  with  whom  they  have  contracted,  and  endeavoring  to  evade  the  con- 
tract upon  the  ground  that  the  contract  they  entered  into  is  beyond  their 
powers  and  absolutely  illegal  on  the  face  of  it.  One  cannot  but  regret  that 
these  companies  should  resort  to  so  unseemly  a  defence  in  courts  of  justice.  I 
do  trust  we  shall  not  hear  of  many  more  of  these  cases,  but  that  these  companies 
will  take  care  that  in  entering  into  contracts  with  individuals  who  are  not  so 
well  protected,  they  do. not  go  beyond  their  powers,  and  one  cannot  but  feel  that 
they  do  not  enter  into  a  contract  of  this  sort,  if  it  be  illegal,  without  being  per- 
fectly aware  of  its  illegality.  Nothing  can  be  more  indecent  than  for  a  great 
company  to  come  into  a  court  of  justice,  and  to  say  that  a  contract  —  a  solemn 
contract  which  they  have  entered  into  —  is  void  on  the  ground  of  its  not  being 
within  their  powers,  not  from  any  subsequent  accident,  not  from  any  mistake  or 
misapprehension,  but  because  they  thought  fit  to  enter  into  it  and  meant  to  have 
the  benefit  of  it,  if  it  turned  out  for  their  benefit,  and  to  take  advantage  of  the 
illegality  in  case  the  contract  should  prove  onerous  and  they  should  desire  to  get 
rid  of  it.  Such  highly  dishonorable  conduct  I  trust  we  shall  not  often  see  in 
courts  of  justice. 

"  Now,  these  cases  last  referred  to  it  is  not  proper  for  me  to  find  fault  with. 
They  are  cases  in  which  it  appears  that  the  company  did  enter  into  engage- 
ments clearly  beyond  their  powers,  and  the  parties  contracting  with  them  must 
be  supposed  to  have  known  that.  It  has  been  decided  that  they  cannot  be  en- 
forced, and  I  have  nothing  to  say  against  those  decisions  ;  but  this  case  does  not 
fall  within  those  decisions.  There  is  nothing  that  has  been  stated  to  me  of  any 
sort  or  kind  excepting  this  :  That  a  Mr.  Duncan,  in  part  of  his  evidence,  refers 
to  the  intention  of  the  parties  to  form  a  junction  with  the  Ambergate  line,  and 
in  that  way  going  right  through  the  plaintiff's  property,  they  being  unable  other- 
wise to  get  at  the  point  which  they  proposed  to  get  at  by  the  curvilinear  diverg- 
ing line,  which  parliament  rejected.  Then  they  say,  it  is  a  fraud  on  the  act 
of  parliament.  There  is  no  such  thing  in  the  contract,  —  no  such  thing  in  the 
answer.  .  This  court  has  not  permitted  any  evidence  to  be  given  on  a  point  of 
defence  that  was  not  raised  in  the  answer ;  because  if  it  had  been  raised,  Mr. 
Hawkes  could  have  shown  there  was  no  foundation  for  it.  I  believe  there  is  no 
foundation.  I  believe  that  the  company  had  in  view  that  they  might,  by  this 
short  cut  through  Mr.  Hawkes's  property,  get  to  a  certain  point ;  but  Mr. 
Hawkes  had  nothing  to  do  with  that.  The  act  provided  for  taking  this  property 
for  the  very  purpose  authorized  by  the  act  of  parliament  itself.  The  cases, 
therefore,  do  not  touch  this  question  at  all,  and,  consequently,  I  am  not  embar- 
rassed by  their  authority. 

"  Then  it  is  said,  there  is  no  mutuality;  and,  therefore,  that  the  company  could 
not  enforce  it,  because  they  have  no  means  of  carrying  the  railway  on  ;  and  that 

1  Bland  v.  Crowley,  6  Railw.  C.  75G  ;  6  Exch.  522. 

*650 


30  PRELIMINARY   ASSOCIATIONS.  §  12. 

of  very  questionable  policy,  *  and  courts  would  more  incline  to 
give  the  contract,  when  consistent  with  the  words  used,  such  a 

involves  also  the  question  of  the  expiration  of  the  time.  I  have  already  referred 
to  authority  to  show  that  expiration  of  time  in  a  case  of  this  sort  amounts  to 
nothing,  where,  as  in  this  case,  it  is  the  fault  of  the  company  itself  that  the  time 
has  been  allowed  to  expire.  They  have  thought  proper  to  allow  the  time  to  ex- 
pire. Their  conduct,  upon  this  correspondence,  admits  of  no  excuse.  With  full 
knowledge  of  all  they  intended  to  do,  they  are  told  the  deeds  are  ready  to  be 
examined  with  the  abstracts ;  they  make  an  appointment  to  go  down,  without 
raising  a  word  of  complaint,  to  examine  the  abstracts  with  the  deeds.  They 
break  that  appointment.  They  make  no  other  appointment.  They  are  told 
that  the  vendor  has  vacated  the  possession  of  the  property,  and  that  it  is  at  their 
disposal,  and  that  he  has  sought  another  residence,  as  he  must  necessarily  have 
done,  and  then  they  serve  a  formal  notice,  telling  him  they  will  have  nothing  to  do 
with  the  contract ;  that  they  do  not  want  the  property,  and  do  not  mean  to  make 
the  line.  What  has  mutuality  to  do  with  it  ?  There  are  many  cases  where  the 
court  has  not  looked  to  the  doctrine  of  mutuality  as  it  ought  to  have  done,  and 
has  inferred  a  contract  against  a  party  where  that  party  could  not  have  suffi- 
ciently enforced  a  contract  against  any  one  else.  Those  are  cases  of  great 
hardship ;  but  here  I  must  look  at  this  contract  at  the  time  the  act  of  parliament 
was  passed,  and  at  the  time  it  was  entered  into.  Where  then  is  there  any  want 
of  mutuality  ?  Could  not  the  company,  within  an  hour  after  the  act  passed,  have 
enforced  the  contract  against  Mr.  Hawkes?  Nobody  disputes  or  doubts  it. 
Where  there  is  the  want  of  mutuality,  it  is  not  because  a  man,  subsequently  to 
the  contract,  chooses  to  introduce  impediments  to  the  performance  of  the  con- 
tract on  his  own  part,  but  it  is  where  it  is  impossible  to  do  that  which  he  had 
contracted  for ;  and  he  cannot,  therefore,  turn  round  against  the  man  with  whom 
he  has  contracted,  and  throw  upon  that  man  the  loss.  Who  is  to  bear  the  loss 
in  this  case  ?  The  company  say  the  loss  is  to  fall  upon  Mr.  Hawkes.  Who  is 
to  blame  ?  The  company ;  not  Mr.  Hawkes.  The  company,  therefore, 
modestly  desire,  in  consequence  of  their  own  act,  in  breaking  this  agreement  as 
they  have  done,  and  rejecting  the  line  after  they  had  obtained  authority  to  make 
it,  throwing  up  the  line  and  endeavoring  to  repudiate  their  solemn  contract,  that 
the  whole  loss  and  burden  is  to  be  thrown  on  the  party  who  is  not  to  blame. 
Fortunately  the  law,  justice,  and  equity  of  the  case  are  agreed.  There  is  noth- 
ing to  prevent  my  enforcing  the  contract  in  the  case. 

"  Then  certain  other  cases  were  cited,  as  showing  I  ought  not  to  interfere  to 
enforce  performance  of  the  contract.  Gage  v.  The  Newmarket  Railway  Com- 
pany, 21  Law  J.  Rep.  (x.  s.)  Q.  B.  398;  s.  c.  14  Eng.  L.  &  Eq.  57,  was  one. 
That  seems  also  to  turn  on  the  conditional  agreement.  There  was  an  agree- 
ment there,  that  the  company,  before  they  entered  on  the  land  which  they 
mi  flit  require,  should  pay,  and  it  was  considered  there  was  no  absolute  agree- 
ment to  pay.  No  doubt,  the  Lord  Chief  Justice  said,  if  there  had  boon  a 
covenant  to  pay,  or  a  covenant  to  pay  a  sum  as  a  sum  in  gross,  that  the  court 
would  have  treated  it  as  void.  The  case  was  not  before  the  court ;  but  they 
*G51 


§12.     CONTRACTS  ENFORCED  IF 'RAILWAY  ABANDONED.       31 

construction,  that  it  shall  be  the  *  purchase  of  a  pecuniary  inter- 
est, or  indemnification  for  a  pecuniary  loss,  which  are  legitimate 

evidently  considered  it  within  the  other  cases,  where  they  had  held  that  the  com- 
pany could  not  bind  itself  beyond  its  powers.  It  required  great  consideration 
how  far  that  doctrine  should  be  carried.  I  dare  say  it  will  be  necessary  that  it 
should  be  ultimately  carried  elsewhere  before  it  can  be  finally  decided.  It  is  a 
great  and  serious  question  how  far  these  companies  can  be  allowed  to  enter  into 
contracts  solemnly  under  their  seal,  and  then  turn  round  upon  the  parties  and 
say  they  have  exceeded  their  powers,  and,  consequently,  will  not  perform  their 
contract.  Then  in  the  other  case  of  Gooday  v.  The  Colchester  and  Stour  Val- 
ley Railway  Company,  19  Law  Times,  334;  s.  c.  15  Eng.  L.  &  Eq.  596, 
there  was  no  agreement  binding  upon  the  company. 

"  I  can  find  no  authority  upon  the  subject,  (and  I  have  looked  carefully 
through  everything  which  has  been  cited,  and  I  postponed  disposing  of  the 
case  in  order  that  I  might  have  that  opportunity,)  to  shake  the  opinion  I  enter- 
tained when  the  agreement  was  closed,  that  this  is  a  very  clear  case  for  specific 
performance.  I  am  very  glad  that  the  law  turns  out  to  be  consistent  with  the 
equity  of  the  case ;  and,  therefore,  I  dismiss  this  appeal,  and  with  costs." 

This  case  was  affirmed  in  the  House  of  Lords,  35  Eng.  L.  &  Eq.  8,  and 
elaborate  opinions  delivered,  by  the  Lord  Chancellor  Cranicorth,  Lord  Campbell, 
and  Lord  St.  Leonards.  The  case  is  obviously  put  somewhat  upon  the  ground 
of  the  peculiar  state  of  facts  involved.  1.  It  is  a  contract  under  the  seal  of  an 
existing  company,  and  not  the  contract  of  the  projectors  of  a  contemplated  com- 
pany merely.  2.  Although  the  contract  had  respect  to  an  extension  of  the 
existing  line,  by  means  of  a  branch  line,  which,  as  to  the  existing  shareholders, 
the  company  had  no  right  to  construct,  and  even  with  the  consent  of  the  legis- 
lature could  not  construct,  with  funds  of  the  existing  company,  yet  nothino- 
of  this  seems  to  have  been  known  to  Mr.  Hawkes.  He  does  not  seem  to  have 
been  made  aware  of  any  purpose  of  the  company  to  do  any  act  beyond  their 
powers,  or  in  conflict  with  the  rights  of  the  shareholders. 

These  several  points  are  thus  stated  in  the  notes  of  the  case  :  — 

Where  an  act  creating  a  railway  company,  or  giving  new  powers  to  an 
existing  company,  authorizes  the  purchase  of  lands  for  extraordinary  purposes, 
a  person  who  agrees  to  sell  his  land  to  the  company  is  not  bound  to  see  that  it 
is  strictly  required  for  such  purposes ;  if  he  does  not  know  of  any  intention  to 
misapply  the  funds  of  the  company,  but  acts  bona  fide  in  the  matter,  he  may  en- 
force performance  of  the  contract. 

Semble,  That  where  the  directors  of  a  railway  company,  wanting  part  of  a 
property,  purchase  more  of  it  than  is  required,  though  that  may  become  a  ques- 
tion between  them  and  the  shareholders,  they  cannot  on  that  account  avoid  the 
contract  with  the  seller. 

Promoters  of  a  company  to  make  a  line  of  railway,  or  persons  standing  in  a 
similar  situation,  as  directors  of  an  existing  company,  applying  to  parliament  for 
authority  to  make  a  new  line,  may  lawfully  enter  into  a  contract  for  land  that 
will  be  necessary  for  the  proposed  line  should  the  bill  pass,  and  when  it  has 

*652 


32  PRELIMINARY   ASSOCIATIONS.  §  12. 

subjects  of  bargain  and  sale,  than  to  *  regard  it,  as  the  purchase 
of  good-will,  or  the  price  of  converting  ill-will  unto  favor,  which 

passed,  such  contract  will  be  valid,  and  may  be  enforced.  The  mere  want  of 
legal  power  to  make  the  contract  at  the  moment  of  entering  into  it,  will  not 
affect  its  validity  afterwards.  Secus,  where  the  act  itself  is  illegal,  and  parlia- 
ment is  to  be  asked  to  legalize  it. 

Where  a  contract  for  the  purchase  of  land  is  made  by  the  projectors  of  a  pro- 
posed line  of  railway,  though  an  action  at  law  may  be  maintained  upon  the  con- 
tract, a  court  of  equity  will  not,  simply  on  that  account,  refuse  its  interference  to 
compel  specific  performance. 

Under  the  first  head  the  following  suggestions  of  Lord  Chancellor  Cranworth 
are  of  interest :  "  A  railway  company  cannot  devote  any  part  of  its  funds  to  an 
object  not  within  the  scope  of  its  original  constitution,  how  beneficial  soever  that 
object  might  seem  likely  to  prove. 

"Thus  in  Colmanu.  The  Eastern  Counties  Railway  Company,  10  Beav.  1  ;  4 
Railw.  C.  513  ;  Lord  Langdale,  at  the  instance  of  a  shareholder,  restrained  the 
company  and  its  directors  from  applying  any  part  of  their  funds  in  assisting  a 
company  which  had  been  formed  for  establishing  a  steam  communication  between 
Harwich  and  the  northern  ports  of  Europe.  The  directors  of  the  railway  com- 
pany thought  that  such  an  application  of  a  part  of  their  funds  would  be  likely 
materially  to  promote  the  interests  of  their  shareholders,  by  encouraging  and  in- 
creasing the  traffic  on  their  line.  But  Lord  Langdale,  though  admitting  that 
such  an  expenditure  might  very  likely  conduce  to  the  interest  of  the  railway 
company,  yet  restrained  the  directors  by  injunction  from  so  applying  any  part 
of  their  funds,  on  the  ground  that  they  had  no  right  to  expend  the  money  of  the 
company  on  any  project  not  directly  within  the  terms  of  its  incorporation. 

"  In  Salomons  v.  Laing,  12  Beav.  339,  the  same  learned  judge  restrained  the 
directors  of  the  South  Coast  Railway  Company  from  applying  any  part  of  the 
funds  of  that  company  in  the  purchase  of  shares  of  another  company  (the 
Portsmouth),  by  which  purchase  the  defendants  hoped  to  benefit  the  company 
of  which  they  were  directors.  The  court  held  that  the  defendants  had  no  right 
to  deal  with  the  funds  in  a  manner  not  authorized  by  their  act. 

"  The  same  principle  was  recognized  and  acted  upon  by  Sir  James  Wigram 
and  Lord  Cottenham  in  Bagshawe  v.  The  Eastern  Union  Railway  Company,  6 
Railw.  C.  152.  There  the  legislature  had  authorized  the  defendants  to  raise, 
by  way  of  additional  shares,  two  sums  of  £200,000  and  £100,000,  the  former  for 
the  purpose  of  enabling  them  to  construct  a  branch  line  to  Harwich,  and  the 
latter  for  enabling  them  to  purchase  and  complete  a  cross  line  to  Hadleigh. 
The  plaintiff  had  purchased  scrip  certificates  for  shares  in  these  undertakings, 
or  one  of  them,  on  which  all  calls  had  been  paid,  and  he  stated  by  his  bill,  that 
the  directors,  though  the  whole  of  the  two  sums,  £200,000  and  £100,000  had 
been  raised,  yet  had  abandoned  the  intention  of  constructing  the  Harwich  line, 
and  were  about  to  apply  the  sums  so  raised  to  the  completing  of  their  line  from 
Ipswich  to  Norwich.  The  bill  prayed,  amongst  other  things,  a  general  account 
of  all  sums  so  applied,  that  the  directors  might  be  decreed  personally  to  make 
*653 


§  12.         CONTRACTS  BY  PROMOTERS  FOR  LAND.  33 

are  certainly  not  regarded  ordinarily  as  the  just  basis  of  con- 
tracts.2 

them  good,  and  for  an  injunction  to  restrain  any  further  similar  application  of 
any  part  of  the  said  two  sums  of  £200,000  and  £100,000.  To  this  bill  there  was 
a  general  demurrer,  but  it  was  overruled,  first  by  Sir  James  Wigram,  and  after- 
wards, on  appeal,  by  Lord  Cottenham  ;  the  ground  of  the  decision  there,  as  in 
the  other  cases,  being  that  the  directors  had  no  right  to  expend  any  part  of  the 
sums  raised  for  a  special  purpose  upon  any  other  object  than  that  for  which  they 
were  so  raised. 

"  In  all  these  cases,  the  discussion  was  raised  by  shareholders  calling  in  ques- 
tion the  misapplication  or  intended  misapplication  of  the  corporate  funds  by  the 
directors.  But  the  doctrine  has  been  acted  on  in  the  courts  of  common  law  to 
the  extent  of  holding  that  a  contract,  even  under  the  seal  of  a  company,  cannot 
in  general  be  enforced,  if  its  object  is  to  cause  the  corporate  property  to  be  di- 
verted to  purposes  not  within  the  scope  of  the  act  of  incorporation.  Thus,  in  the 
case  of  The  East  Anglian  Railway  Company  v.  The  Eastern  Counties  Railway 
Company,  11  C.  B  803;  s.  C.  7  Eng.  L.  &  Eq.  505,  the  Court  of  Common 
Pleas,  after  an  elaborate  argument,  held  that  no  action  could  be  maintained 
against  the  defendants  on  a  covenant  into  which  they  had  entered  for  payment 
to  the  plaintiffs  of  the  costs  incurred  in  applications  to  parliament,  made  at  the 
instance  of  the  defendants,  for  obtaining  from  the  legislature  powers  which  the 
defendants  considered  it  desirable  for  their  interests  that  the  plaintiffs  should 
possess.  The  Chief  Justice,  in  delivering  the  judgment  of  the  court,  says,  (11 
C.  B.  809  ;  s.  c.  7  Eng.  L.  &  Eq.  510,)  '  The  statute  incorporating  the  de- 
fendants' company,  gives  no  authority  respecting  the  bills  in  parliament  pro- 
moted by  the  plaintiffs,  and  we  are  therefore  bound  to  say,  that  any  contract 
relating  to  such  bills  is  not  justified  by  the  act  of  parliament,  is  not  within  the 
scope  of  the  authority  of  the  company  as  a  corporation,  and  is  therefore  void.' 

"  This  case  was  afterwards  recognized  and  acted  on  by  the  Exchequer  Cham- 
ber, in  the  case  of  MacGregor  v.  The  Official  Manager  of  the  Deal  &  Dover 
Railway  Company,  18  Q.  B.  618;  s.  c.  16  Eng.  L.  &  Eq.  180.  It  must, 
therefore,  be  now  considered  as  a  well-settled  doctrine,  that  a  company,  incorpo- 
rated by  act  of  parliament  for  a  special  pm-pose,  cannot  devote  any  part  of  its 
funds  to  objects  unauthorized  by  the  terms  of  its  incorporation,  however  desir- 
able such  an  application  may  appear  to  be. 

"  1  have  referred  to  these  cases,  and  there  are  others  to  the  same  effect,  for  the 
purpose  of  showing  how  firmly  the  law  on  this  subject  is  established,  and  of 
guarding  myself  against  being  supposed  to  throw  any  doubt  upon  it.  But  I  do 
not  think  that  the  present  case  comes  within  the  principle  on  which  these  deci- 

2  Gage  v.  Newmarket  Railway  Co.  7  Railw.  C.  168 ;  s.  c.  14  Eng.  L.  &  Eq. 
57  ;  Porcher  v.  Gardner,  14  Jur.  43  ;  19  L.  J.  63  ;  8  C.  B.  461  ;  Shelford  on 
Railways,  402.  See  also  Cumberland  Valley  Railway  Co.  v.  Baab,  9  Watts, 
458;  Ilawkes  v.  Eastern  Counties  Railway  Co.,  7  Railw.  Cases,  219;  s.  c.  4 
Eng.  L.  &Eq.  91. 
3 


34  PRELIMINARY   ASSOCIATIONS.  §  12. 

2.  *  But  in  many  cases  these  provisional  contracts  have  been 
enforced,  notwithstanding  the  projected  works  have  been  aban- 

sions  have  rested.  The  making  of  the  Wisbeach  &  Spalding  Branch  was  not 
treated  by  the  legislature  as  anew  and  independent  object  to  be  carried  into 
execution  by  distinct  funds  raised  for  that  special  purpose.  The  power  to  make 
the  new  line  was,  according  to  the  construction  I  put  on  the  act,  merely  an  addi- 
tion to  the  powers  conferred  by  the  former  acts.  So  that  after  the  Wisbeach  & 
Spalding  act  came  into  operation,  the  rights  and  powers  of  the  company  were  to 
be  regarded  as  if  they  had  originally  been  powers,  to  make  the  new  line  and  to 
raise  the  additional  capital.  The  new  works  were  to  be  considered  as  having 
formed  part  of  the  original  undertaking,  and  the  new  shares  were  to  be  consid- 
ered as  part  of  the  general  capital.  From  the  time,  therefore,  when  the  Wis- 
beach &  Spalding  bill  received  the  royal  assent,  (and  until  that  happened  there 
was  no  binding  contract,)  the  directors  had  just  the  same  right  to  apply  their 
funds  to  the  purchase  of  land  for  the  purposes  of  the  new  line,  as,  before  the 
passing  of  that  act,  they  had  for  the  purchasing  of  land  for  the  original  line. 
This  consideration,  therefore,  seems  to  me  clearly  to  distinguish  the  present  case 
from  all  those  cases  cited  in  the  argument.  The  contract  here  was  to  apply  the 
funds  of  the  company  to  a  purchase  within  the  scope  of  its  incorporation,  and 
not  to  any  purposes  foreign  to  it,  and  I  see  no  objection,  therefore,  to  the  con- 
tract on  this  first  ground. 

"  But  it  was  argued,  secondly,  that  even  supposing  the  contract  not  to  be  open 
to  objection  on  the  ground  of  its  being  an  attempt  to  appropriate  the  company's 
funds  to  an  object  foreign  to  their  original  purposes,  still,  that  it  could  not  be 
supported,  inasmuch  as  it  was  an  agreement  to  purchase,  for  the  new  railway, 
lands  not  wanted  for  the  purpose  of  making  it.  The  directors  had  originally  de- 
sired to  obtain  powers  to  make  a  straight  cut  from  their  new  line  to  join  the 
Ambergate,  Nottingham,  &  Boston  Railway,  and  for  that  purpose  it  would  have 
been  essential  to  them  to  possess  the  plaintiffs  land,  but  they  failed  in  their  ob- 
ject of  obtaining  power  to  form  this  straight  cut,  and  then  there  was  not,  it  was 
said,  any  necessity  for  them  to  get  possession  of  the  plaintiffs  land.  A  .-mall 
portion  only  of  it,  about  an  acre  and  a  half,  is  within  the  line  of  deviation,  and  it 
was  argued  that  a  contract  to  purchase  the  whole,  (nearly  six  acres,)  was  a  con- 
tract ultra  vires,  inasmuch  as  the  company  could  only  purchase  what  was  really 
necessary  or  proper  for  the  construction  of  the  line.  But  the  answer  to  this 
argument  appeared  to  me  satisfactory.  The  contract  was  not  necessarily,  and 
on  the  face  of  it,  ultra  vires.  If  the  land  in  question  was  really  wanted  by  the 
appellants  for  what  are  called  extraordinary  purposes,  they  were  authorized  to 
purchase  it.  Besides  the  line  of  deviation  actually  cuts  the  respondent's  house 
in  two,  and  in  such  circumstances  the  appellants  had  no  right  to  take  a  part 
without  taking  the  whole,  if  the  plaintiff  required  them  to  do  so ;  and  it  is  a 
reasonable  inference  that  the  contract  to  purchase  the  whole  was  made  because, 
wanting  what  was  within  the  limits  of  deviation,  the  directors  knew  that  they 
could  not  stop  short  with  what  was  within  those  limits.  Be  that,  however,  as  it 
may, .there  was  nothing  to  show  the  respondent  that  his  land  was  not  wanted  for  the 
*654 


§  12.         CONTRACTS  BY  PROMOTERS  FOR  LAND.  35 

doned.3  *  But  where  the  contract  is  a  mere  arrangement  to 
purchase  land  at  a  specified  price,  for  the  purpose  of  building 

legitimate  objects  of  the  company,  and  in  such  a  case  it  cannot  be  permitted  to  the 
directors  to  allege  that  the  contract  ivas  invalid  as  being  beyond  (heir  powers  ;  for 
as  argued  at  the  bar,  it  could  be  no  answer  to  an  action  for  iron  rails  bargained 
and  sold,  that  the  contract  had  been  entered  into,  not  in  order  to  obtain  rails  for 
the  use  of  the  line,  but  in  order  to  keep  them  in  hand  for  the  purpose  of  a  future 
use,  on  a  speculation  that  iron  was  likely  to  rise  in  value.  I  consider,  therefore, 
that  this  second  objection  is  as  untenable  as  the  first." 

In  regard  to  the  second  point  adverted  to  in  the  notes  of  this  case,  Lord 
(  'ampbell  made  some  comments,  which  seem  to  us  of  very  considerable  weight  as 
applicable  to  the  general  subject  involved :  "  During  the  argument  there  was 
much  discussion  on  the  question  how  far  such  a  company  is  bound  by  contracts 
entered  into  by  the  promoters  of  the  act  of  parliament  by  which  the  com- 
pany is  constituted.  That  question  really  does  not  properly  arise  here ; 
but  I  think  it  right  to  guard  myself  against  the  peril  of  being,  supposed  to 
acquiesce  in  the  doctrine  contended  for  by  the  respondent's  counsel,  that  there 
is  complete  identity  between  the  promoters  of  the  act  and  the  company,  and  that 
as  soon  as  the  act  has  received  the  royal  assent,  a  bill  in  equity  might  be  filed 
against  the  company  for  specific  performance  of  any  contracts  respecting  land 
into  which  the  promoters  had  entered.  If  the  company  should  adopt  the  con- 
tract and  have  the  full  benefit  of  it,  I  think  the  company  would  be  bound  by  it 
in  equity,  and  therefore  I  approve  of  the  decision  in  Edwards  v.  Grand  Junc- 
tion Canal  Company,  1  Myl.  &  Cr.  650;  1  Railw.  C.  173  ;  although  the  language 
of  Lord  Cottenham  in  that  case  may  require  qualification  and  must  be  taken 
with  reference  to  the  facts  with  which  he  was  dealing.  But  it  seems  to  me  that 
the  extension  contended  for  of  the  principle  on  which  that  case,  and  several 
similar  cases  which  have  followed  it,  rest,  is  quite  unreasonable,  and  would  lead 
to  very  mischievous  consequences. 

"  Here  then  is  a  contract  admitted  to  be  under  the  common  seal  of  the  com- 
pany. The  appellants  make  an  idle  allegation  that  the  seal  Avas  affixed  without 
the  sanction  of  a  majority  of  the  members  of  the  company,  but  no  fraud  is  im- 
puted to  Mr.  Hawkes.  The  directors  have  repeatedly  recognized  the  validity 
of  the  contract,  and  in  an  action  at  law  upon  it,  under  a  plea  of  non  est  fac- 
tum, they  could  have  had  no  defence,  though,  if  they  could  allege  and  prove 
that  Mr.  Hawkes  was  guilty  of  illegality  in  entering  into  it,  the  action  would 
be  barred. 

"  But  dismissing  the  charge  that  he  was  bargaining  for  the  application  of  the 
funds  of  the  company  to  a  line  to  be  made  without  the  authority  of  parliament, 

3  Shrewsbury  &  Birmingham  Railway  Co.  v.  London  &  Northwestern  Rail- 
way Co.,  20  L.  J.  Ch.  90;  s.  c.  14  Jur.  921  :  1  Eng.  L.  &  Eq.  122;  Hawkes 
I?.  Eastern  Counties  Railway  Co.,  20  L.  J.  243  ;  s.  c.  4  Eng.  L.  &  Eq.  91  ; 
Preston  v.  Liverpool,  Manchester,  &  Newcastle-upon-Tyne  Junction  Railway  Co., 
1  Simons  (n.  s.)  586  ;  7  Railway  C.  1  ;  7  Eng.  L.  &  Eq.  R.  124. 

*655 


36  PRELIMINARY   ASSOCIATIONS.  §  12. 

the  railway,  and  the  *  quieting  of  opposition  does  not  enter  into 
the  consideration,  the  company  are  not  bound  to  pay  over  the 

the  contract  is  merely  the  ordinary  contract  between  a  company  meaning  to 
apply  to  parliament  for  authority  to  extend  a  line  of  railway,  and  the  owners  of 
the  land  through  which  the  extended  line  is  meant  to  pass,  to  be  carried  into 
effect  if  the  solicited  act  of  parliament  be  obtained.  The  shareholders  of  the 
company  might  if  they  pleased  object  to  their  funds  being  applied  to  defraying 
the  expense  of  soliciting  the  bill,  but  if  they  remain  quiet  it  may  fairly  be  in- 
ferred that  they  all  approve  of  the  extension  ;  and  when  the  bill  to  authorize  the 
extension  has  received  the  royal  assent,  no  shareholder  can  any  longer  complain. 
According  to  the  manner  in  which  such  bills  are  usually  framed,  the  extended 
line  becomes  part  of  the  concern  to  be  managed  by  the  company  for  the  profit 
of  the  body  of  shareholders,  power  being  given  to  the  company  to  increase  the 
capital,  or  by  some  means  to  provide  the  money  necessary  to  complete  the  ex- 
tended line.  Since  the  case  of  Simpson  v.  Lord  Howden,  9  CI.  &  Fin.  61,  it  is 
impossible  to  contend  that  an  agreement  by  a  land-owner  to  withdraw  opposition 
to  a  bill  for  a  railway  intended  to  pass  through  his  property  is  not  a  good  and 
valuable  consideration.  I  adhere  to  the  doctrine  laid  down  in  a  passage  quoted 
from  my  judgment  in  the  case  of  the  Mayor  of  Norwich  v.  The  Norfolk  Railway 
Company,  4  Ell.  &  Bl.  397;  s.  C.  30  Eng.  L.  &  Eq.  120;  but  that  referred 
to  doing  something  which  was  positively  criminal  and  indictable,  the  obstruction 
of  a  navigable  river  by  building  a  bridge  across  it.  This  cannot  lawfully  be 
done  in  the  hope  that  an  act  of  parliament  may  be  obtained  to  legalize  it.  But 
where  no  offence  is  to  be  committed  against  the  public,  and  there  is  a  mere  want 
of  authority  for  a  transaction  among  private  individuals  or  commercial  com- 
panies, which  authority  can  only  be  obtained  by  act  of  parliament,  no  objection 
whatever  can  be  successfully  made  to  the  parties  entering  into  an  agreement 
for  completing  the  transaction  when  the  necessary  authority  is  so  obtained." 

In  regard  to  decreeing  specific  performance  of  contracts  of  this  character,  the 
Lord  Chancellor  makes  some  pertinent  remarks  :  "  The  third  point  made  in  sup- 
port of  this  appeal  was,  that  even  taking  the  contract  to  have  been  a  good  and 
valid  contract,  into  which  the  company  might  lawfully  enter,  still,  the  case  was 
one  in  which  a  court  of  equity  ought  not  to  interfere,  but  ought  to  leave  the 
plaintiff  to  assert  his  legal  rights  by  action.  It  was  argued  that  the  court  has 
frequently  acted  on  this  principle  in  suits  where  a  vendor  has  been  seeking,  as 
in  this  case,  to  enforce  against  a  railway  company  the  specific  performance  of  a 
contract  for  the  purchase  of  land,  when  the  time  within  which  the  line  was  to 
be  made  had  expired.  And  reference  was  in  particular  made  to  two  cases 
decided  by  Lord  Justice  Knight  Bruce  and  myself,  when  I  held  the  office  of 
Lord  Justice.  I  allude  to  the  cases  of  Webb  v.  The  Direct  London  and  Ports- 
mouth Railway  Company,  1  De  G.  Mac.  &  G.  521 ;  s.  c.  9  Eng.  L.  &  Eq. 
249,  and  Stuart  v.  The  London  &  Northwestern  Railway  Company,  1  De  G. 
Mac.  &  G.  721  ;  s.  c.  11  Eng.  L.  &  Eq.  112. 

"  In  the  former  of  these  cases  (the  particulars  of  which  his  lordship  fully 
stated)  the  court  proceeded  on  two  grounds.  In  the  fii-st  place,  the  terms  in 
*656 


§  12.         CONTRACTS  BY  PROMOTERS  FOR  LAND.  37 

money,  unless  they  enter  *  upon  some  portion  of  the  land,  and 
under  such  circumstances  an  absolute  covenant  to  pay  the  money, 
by  the  company,  would  be  ultra  vires  and  void.4 

which  the  deed  was  framed  were  such  as  to  lead  the  court  strongly  to  the  con- 
clusion that  the  whole  contract  was  meant  to  be  conditional  on  the  line  being 
formed,  and  that  if  it  should  be  (as  in  fact  it  was)  abandoned  by  its  projectors, 
then  all  the  provisions  of  the  agreement  were  to  fall  to  the  ground  ;  a  construc- 
tion, I  may  observe,  which  receives  great  support  from  the  subsequent  case  of 
Gage  v.  The  Newmarket  Railway  Company,  18  Q.  B.  457;  s.  c.  14  Eng. 
L.  &  Eq.  57.  But  independently  of  that  difficulty  the  case  appeared  to  be 
one  in  which  a  court  of  equity  ought  not  to  interfere  in  favor  of  the  plaintiff,  for 
that,  by  any  such  interference,  we  should  be  doing  injustice  in  the  attempt  to 
add  to  the  legal  remedy.  The  injury  which  the  plaintiff  sustained  by  the  non- 
performance of  the  contract  was  this  :  though  he  was  left  with  the  whole  of  his 
land  untouched,  he  lost  all  claim  to  the  £4,500,  and  might,  perhaps,  have  sus- 
tained damage  consequent  on  his  having  been  for  five  years  liable  to  have  any 
portion  of  it,  not  exceeding  eight  acres,  taken  by  the  company  for  the  purpose 
of  the  railway.  That  ious  evidently  a  case  for  compensation  by  action  for  damages 
and  not  for  relief  by  way  of  specif  c  performance.  Indeed,  I  hardly  know  how  a 
decree  for  specific  performance  could  have  been  there  enforced,  for  no  particular 
eight  acres  had  been  contracted  for,  and  the  company  had  no  power  to  select 
eight  acres,  except  for  the  purpose  of  making  the  railway,  the  power  to  make 
which  had  long  since  ceased.  On  these  grounds  the  court  refused  to  interfere, 
leaving  the  plaintiff  to  the  legal  remedy  on  his  covenant. 

"  I  have  thought  it  necessary  to  explain  the  grounds  on  which  the  decision  in 
these  two  cases  rested,  for  the  purpose  of  showing  that  they  are  not  at  variance 
with  the  decision  now  under  appeal.  Here  there  is  no  uncertainty  as  to  the 
subject-matter  of  the  purchase.  The  vendor  did  not  sleep  on  his  rights,  and 
wait  until  it  was  impossible  for  the  purchaser  to  make  the  line.  On  the  con- 
trary, from  the  very  day  on  which  the  contract  was  to  be  completed,  he  insisted 
on  its  performance,  having  shortly  before  that  time  quitted  possession  of  the 
property,  and  within  less  than  five  months  afterwards  he  filed  his  bill.  It  is 
true  that  the  directors,  after  the  filing  of  the  bill,  allowed  the  time  to  pass  within 
which  they  were  bound  to  complete  the  line.  But  the  plaintiff  is  not  to  blame 
for  that.  He  did  not,  either  actively  or  passively,  mislead  the  defendants,  and  it 
would  be  impossible  to  hold  that  he  is  not  entitled  to  the  relief  he  asks,  without 
going  to  the  length  of  saying  that  no  vendor  of  an  estate,  contracting  to  sell  to  a 
railway  company,  can  ever  have  a  decree  for  a  specific  performance  if  the  com- 
pany should  see  fit  afterwards  to  abandon  the  undertaking,  with  a  view  to  which 
the  contract  was  made." 

4  Gage  v.  The  Newmarket  Railway,  14  Eng.  L.  &  Eq.  57.  In  this  case, 
the  views  of  Lord  Campbell,  in  delivering  the  opinion  of  the  court,  do  not  seem 
to  be  altogether  reconcilable  with  those  expressed  by  the  Lord  Chancellor,  in 
Hawkes  v.  The  Eastern  Counties  Railway,  but  as  they  seem  to  us  more  consist- 
ent with  the  views  maintained  in  this  country,  upon  analogous  subjects,  and  those 

*  657 


138  PRELIMINARY   ASSOCIATIONS.  §  12. 

In  an  important  case 5  before  the  House  of  Lords,  the  doctrine 
of  the  former  cases  is  assumed  to  have  established  the  proposition, 

which  we  anticipate  may  probably  find  more  favor  in  the  English  courts  when 
the  outward  pressure  of  circumstances  shall,  by  lapse  of  time,  be  removed,  we 
here  adopt  them.  Lord  Campbell,  Ch.  J.  :  "  We  are  of  opinion,  that  the  defend- 
ants are  entitled  to  our  judgment.  Taking  the  deed  as  set  out  on  oyer,  we  think 
thai  there  is  no  breach  well  assigned  upon  it.  The  covenant  there  (without  say- 
ing anything  as  the  declaration  does  about  '  reasonable  time ' )  is  merely  in  these 
words :  '  That  in  the  event  of  the  bill  hereinbefore  mentioned  being  passed  in 
the  present  session  of  parliament,  the  said  company  shall,  before  they  shall  enter 
upon  any  part  of  the  lands  of  the  said  Sir  Thomas  Rokewood  Gage,  in  the  said 
county  of  Suffolk,  pay  to  the  said  Sir  T.  R.  Gage,  his  heirs  and  assigns,  the  sum 
of  £4,900  purchase-money,  for  any  portion  of  his  lands  not  exceeding  forty- 
three  acres,  which  the  said  company  may,  under  the  powers  of  their  act,  require 
and  take  for  the  purposes  of  their  undertaking ;  that  in  addition  to  purchase- 
money  as  aforesaid,  the  said  company  shall  pay  to  the  said  Sir  T.  R  Gage,  his 
heirs  and  assigns,  before  they  shall  enter  upon  any  part  of  the  said  land,  the  sum 
of  £7,100  as  a  landlord's  compensation  for  the  damage  arising  to  his  estate  by 
the  severance  thereof,  in  respect  of  the  lands,  not  exceeding  forty-three  acres,  to 
be  taken  by  them.'  The  question  we  have  to  determine  is  whether  the  company, 
never  having  entered  upon  any  part  of  the  plaintiff's  lands,  he  is  now  entitled 
to  sue  for  these  two  sums,  or  either  of  them?  The  £4,900  is  declared  to  be  the 
purchase-money  for  the  land  to  be  required  and  taken  ;  and  the  only  time  of 
payment  mentioned  is  before  the  company  enter  on  the  land.  Therefore,  if  no 
land  is  required  or  taken,  and  the  company  never  enter  on  any  part  of  the  land, 
there  seems  great  difficulty  in  saying  that  there  has  been  a  breach  of  covenant 
in  not  paying  the  money.  So  the  £7,100  is  declared  to  be  a  compensation  for 
the  severance  of  the  land  taken  from  the  rest  of  the  plaintiff's  land,  and  the  same 
time  of  payment  is  defined.  But  there  has  been  no  severance  to  be  compen- 
sated, and  the  time  for  payment  has  not  arrived.  The  deed  does  not  bargain  for 
a  sum  of  money  to  be  paid  absolutely  by  the  company  to  the  plaintiff,  as  a  con- 
sideration for  his  withdrawing  his  opposition  to  the  bill,  but  provides  a  peculiar 
mode  of  estimating  the  value  of  the  land  to  be  taken,  and  of  the  compensation  to 
be  made  for  severance-damage,  instead  of  the  modes  pointed  out  by  the  general 
acts  upon  this  subject.  We  therefore  do  not  think  that  the  company  can  be 
considered  as  having  absolutely  covenanted  to  pay  £12,000  to  the  plaintiff,  in  a 
reasonable  time  after  the  passing  of  the  act.  If  this  deed  could  bear  such  a  con- 
struction, we  should  have  thought  it  so  far  tdtra  vires  and  void.  Here  the  rail- 
way company  are  the  covenanters  ;  and  if  the  present  action  lies,  the  capital 
paid  up  by  the  shareholders  must  be  answerable  for  the  damages  to  be  recovered. 
We  consider  that  this  would  be  a  misappropriation  of  the  funds  of  the  company, 
which  the  directors  could  not  lawfully  make.     All  the  cases  relied  upon  by  the 

5  The  Scottish  Northeastern  Railway  v.  Stewart,  5  Jur.  N.  S.  607  ;  3  Macq. 
H.  Lds.  Cas.  382. 


§13. 


SPECIFIC   PERFORMANCE   IN   COURTS   OF  EQUITY. 


39 


that  the  acts  of  parliament  to  railway  companies,  empowering 
them  to  build  railways,  are  enabling  and  not  obligatory  in  their 
nature.  And  it  was  here  considered  that,  upon  a  contract 
whereby  the  company,  before  obtaining  their  act,  executed  a  de- 
benture bond  in  the  sum  of  <£  14,500  to  one  of  the  land-owners, 
as  the  sum  to  be  paid  him  before  breaking  ground,  taking  a 
counter  obligation  to  repay  the  sum  if  the  bill  should  not  pass  ; 
and,  having  obtained  their  act,  but  never  exercised  its  powers  or 
built  their  road,  it  must  be  held  that,  upon  the  fair  construction 
of  the  whole  transaction  with  reference  to  the  more  recent  view 
taken  by  the  courts  of  the  law  applicable  to  such  contracts,  that 
the  money  stipulated  was  not  due  the  land-owner  except  upon 
the  company  breaking  ground  for  the  purpose  of  constructing 
their  works. 


♦SECTION    XII, 


Practice  of  Courts  of  Equity  in  decreeing  Specific  Performance. 


1.  Mutual  arrangements  protected  in  Chan- 

cery. 

2.  But  decisions  are  conflicting.     In  cases 


of  doubtful  right  plaintiff  is  remitted  to 
common-late  remedies. 
.  2.  Statement  of  cases. 


§  13.  1.  The  English  courts  of  chancery  have,  in  many  in- 
stances, enforced  specific  performance  of  contracts,  between  dif- 
ferent lines  *  of  railways,  fixing  mutual  arrangements,  in  refer- 

plaintiff 's  counsel  are  clearly  distinguished  from  the  present,  except  Webb  v. 
The  London  &  Portsmouth  Railway  Company,  before  Vice-Chancellor  Turner. 
Notwithstanding  our  high  respect  for  that  learned  judge,  we  cannot  concur  in  the 
reasons  for  his  decision  ;  and  although  it  has  not  been  expressly  overturned,  its 
authority  was  greatly  shaken  when  it  came  before  the  Lords  Justices  of  Appeal. 
We  do  not  feel  it  necessary  to  give  any  opinion  upon  the  case  of  Bland  v.  Crow- 
ley, in  which  the  learned  judges  of  the  Court  of  Exchequer  were  divided,  as  the 
deed  there  discussed  varies  materially  from  the  present.  Nor  would  it  be  proper 
to  give  any  opinion  upon  Stuart  v.  The  London  &  Northwestern  Railway  Com- 
pany, as  we  learn  that  when  it  came  before  the  Lords  Justices  of  Appeal,  it  was 
sent  by  them  to  be  decided  in  a  court  of  law.  We  are  happy  to  think  that  the 
question  in  this  case  being  on  the  record,  it  may  be  brought  before  a  court  of 
error."  See  §  16,  and  notes.  The  same  principle  was  further  enforced  and 
illustrated,  in  a  recent  case,  in  the  House  of  Lords.  Edinburgh,  Perth,  &  Dun- 
dee Railway  v.  Philip,  28  Law  Times,  345,  39  Eng.  L.  &  Eq.  41. 

*658,  659 


40  PRELIMINARY   ASSOCIATIONS.  §  13. 

ence  to  their  future  operations,  even  where  acts  of  parliament 
were  necessary  to  carry  such  contracts  into  full  effect,  and  some- 
times after  a  change  of  circumstances,  materially  affecting  the 
interest  of  the  parties  concerned.  And  those  courts  have  often 
enforced  an  injunction,  in  cases  of  this  kind,  where  interests  of 
great  magnitude  were  concerned,  even  where  the  right  of  the 
plaintiff  was  questionable,  upon  the  ground  that  things  were 
required  to  be  kept  in  a  safe  train,  until  the  rights  of  the  respec- 
tive parties  could  be  definitely  determined.1 

2.  But  the  practice  of  the  English  courts  of  equity,  in  regard 
to  this  subject,  resting  chiefly  in  discretion,  as  might  be  expected, 
is  very  uncertain,  and  the  cases  not  easily  reconcilable.  In  many 
cases,  where  the  right  of  the  plaintiff  is  doubtful,  the  injunction 
to  stay  the  progress  of  the  road  till  the  contract  was  performed 
has  been  denied,  and  the  party  remitted  to  pursue  his  rights  in  a 
court  of  law.2     The  latter  course  would  seem  to  be  most  consist- 

1  Great  Western  Railway  Co.  v.  The  Birmingham  &  Oxford  Junction  Rail- 
way Co.  and  others,  2  Phillips,  Ch.  Cases,  597.  The  remarks  of  Coltenham, 
Lord  Chancellor,  in  this  last  case,  are  very  pointed,  in  defence  of  the  practice, 
in  the  English  courts  of  equity,  of  enforcing  contracts,  made  by  the  projectors  of 
railways,  against  the  company  itself,  after  it  comes  into  operation. 

2  Webb  v.  Direct  London  &  Portsmouth  Railway  Co.,  9  Eng.  L.  &  Eq.  249. 
When  the  same  case  was  before  the  Vice-Chancellor,  Turner,  he  seemed  to  re- 
gard the  plaintiff  as  entitled  to  specific  performance,  but  the  Lords  Justices, 
upon  appeal,  entertained  no  doubt  that  the  party  should  be  remitted  to  his 
rights  in  a  court  of  law.  See  Preston  v.  Liverpool,  Manchester,  &  Newcastle 
Junction  Railway  Co.,  1' Simons  (n.  s.)  586  ;  s.  c.  7  Eng.  L.  &  Eq.  124.  The 
Court  of  Appeal,  in  a  similar  case,  Lord  J.  Stuart  v.  London  and  Northwestern 
Railway  Co.,  7  Railw.  C.  44;  11  Eng.  L.  &  Eq.  112,  put  their  refusal  to 
decree  specific  performance,  upon  the  grounds,  that  the  party,  if  he  had  any 
right,  could  obtain  complete  redress  at  law,  and  that,  after  the  abandonment  of 
the  project,  or  material  departures  from  it,  it  would  be  impossible  for  the  railway 
to  hold  the  land  to  any  beneficial  purpose,  after  paying  the  money,  and  that 
therefore  the  principle  of  mutuality  wholly  failed.  The  Lord  Chancellor,  St. 
Leonards,  seemed  also  to  be  of  opinion,  that  the  only  ground  upon  which  the 
decision,  in  Webb  v.  London  and  Portsmouth  Railway  Company,  9  Eng.  L.  & 
Eq.  249,  could  be  vindicated,  was  the  want  of  mutuality.  But  it  would  seem, 
that  this  whole  class  of  cases,  where  contracts  have  been  made  to  take  land, 
either  at  a  given  price  per  acre  or  for  a  gross  sum,  or  to  pay  a  sum  of  money 
for  the  damage  to  an  estate  in  gross,  by  reason  of  a  railway  coming  in  a  certain 
line,  either  across  or  near  the  premises  of  the  obligee,  should  be  regarded  as  con- 
ditional, unless  the  contrary  appeared,  in  express  terms,  or   by  the  strongest 


§  13.  SPECIFIC   PERFORMANCE   IN   COURTS   OF  EQUITY.  41 

ent  with  *  the  ordinary  proceedings  of  courts  of  equity,  in  appli- 
cations for  specific  performance. 

implication.  Any  other  view  of  these  parliamentary  contracts,  as  they  are  de- 
nominated, gives  them  very  much  the  air  of  wagering  policies  or  legislative 
gambling !  See  also  upon  this  subject,  Potts  v.  The  Thames  Haven  Dock  & 
Railw.  Company,  15  Jur.  1004;  s.  c.  7  Eng.  L.  &  Eq.  262,  where  it  is  held, 
that  in  pursuing  a  claim  for  specific  performance  of  an  agreement  of  a  railway 
company  to  purchase  land  of  trustees,  that  the  persons  beneficially  interested  in 
the  land  were  not  necessary  parties  to  the  proceeding.  A  query  is  suggested, 
whether  a  specific  performance  could  be  decreed,  there  having  been  no  valua- 
tion of  the  land,  and  in  this  case  there  had  been  great  delay  on  the  part  of  the 
company,  owing  to  their  pecuniary  embarrassment,  but  after  considerable  dis- 
cussion, it  was  agreed  to  give  the  company  further  time,  and  the  claim  was 
ordered  to  stand  over.  It  has  been  held,  that  where  a  private  company  leased 
land,  with  a  clause  of  re-entry  and  were  subsequently  incorporated,  with  an 
express  provision  in  their  charter  that  all  contracts  made  before  the  act  of  in- 
corporation shall  be  binding  upon  the  corporation,  and  they  have  the  same  rights 
as  if  these  contracts  were  entered  into  with  them,  that  they  might  maintain 
ejectment  for  the  land.     London  Dock  Co.  v.  Knebell,  2  M.  &  Rob.  66. 

The  case  of  Strasburg  Railway  Co.  v.  Echternacht,  21  Penn.  St.  220,  was  this:  — 
Several  persons  signed  a  paper  agreeing  that  if  the  Strasburg  Railway  should 
be  incorporated  with  certain  privileges,  they  would  subscribe  the  number  of 
shares  set  opposite  their  names  respectively,  and  the  charter  was  obtained  with 
the  privileges  in  question,  but  the  defendant,  who  was  one  of  the  subscribers 
above  mentioned,  refused  to  take  the  stock,  and  it  was  held,  that  the  promise  was 
without  consideration,  and  therefore  not  a  contract,  but  a  mere  naked  expression 
of  intention,  which  equity  will  not  enforce  by  specific  performance,  and  that  if  it 
was  a  binding  agreement  it  should  be  enforced  at  law. 

Leave  has  sometimes  been  given  by  courts  of  equity  to  oppose  a  bill  in  parlia- 
ment, unless  certain  compromises  between  the  projectors  and  landholders  on 
the  proposed  line  should  be  effected.  Davis  v.  Combermere,  3  Railw.  C.  506  ; 
Monypenny  v.  Monypenny,  4  Railw.  C.  226. 

It  is  said,  in  a  late  English  work  upon  the  subject,  Hodges  on  Railways,  16^, 
that  it  is  well  settled,  that  agreements  made  with  railway  companies  by  land- 
holders to  sell  their  lands,  and  to  withdraw  or  withhold  opposition  to  a  bill  in 
parliament,  are  not  illegal.  See  also  Capper  v.  The  Earl  of  Lindsey,  3  House 
of  Lords  Cases,  293  ;  s.  c.  14  Eng.  L.  &  Eq.  9.  This  case  was  first  argued 
in  the  Court  of  Exchequer,  and  subsequently  in  the  Exchequer  Chamber,  on 
error,  and  finally  in  the  House  of  Lords  in  the  year  1851.  The  case  is  not 
found  in  any  of  the  English  treatises  on  railways,  except  Hodges,  and  as  it  was 
long  discussed  at  the  bar,  and  thoroughly  examined  by  almost  all  the  judges  in 
the  House  of  Lords,  it  ought  perhaps  to  be  regarded  as  the  final  determination 
of  the  English  courts  upon  the  subject.  The  question  of  legality  seems  to  have 
been  taken  for  granted  here.  This  case  was  A,  a  landholder,  through  whose  es- 
tate a  part  of  the  projected  railway  was  to  pass,  became  a  party  to  a  deed  with 

*660 


42  PRELIMINARY   ASSOCIATIONS.  §  14. 

*SECTION    XIII. 

Specific  Performance  in  Courts  of  Equity. 

# 

Object  of  courts  to  compel  good  faith,  when  a  definite  contract  is  made. 

§  14.    But  the  courts  of  equity  have  been  mainly  influenced 
by  what  they  esteem  the  policy  of  enforcing  these  parliamentary 

the  projectors  of  the  railway,  by  which  he  covenanted  to  withdraw  his  opposition 
to  their  bill  and  to  oppose  a  rival  bill ;  and  they  covenanted  to  pay  him  a  certain 
sum  of  money  in  case  their  bill  should  pass  within  six  months  from  the  date  of 
the  deed.  It  was  then  provided  that,  if  the  bill  of  these  projectors  did  not  pass 
within  six  months  from  the  date  of  the  payment,  either  party  might  put  an  end 
to  the  agreement  by  notice.  The  deed  then  contained  a  covenant  on  the  part 
of  the  projectors,  by  which  they  agreed,  if  the  two  companies  should  be  amal- 
gamated, to  pay  a  certain  sum  within  three  months  after  such  amalgamation. 
The  deed  was  dated  16th  March,  1846.  The  two  companies  were  amalgamated 
in  June,  1846  ;  but  no  bill  ever  passed  at  the  instance  of  these  projectors  alone. 
In  November,  1846,  the  projectors  gave  notice  to  put  an  end  to  the  agreement. 
The  action  was  based  upon  that  clause  in  the  agreement  by  which  the  projectors 
were  to  pay  a  sum  of  money  in  case  of  the  amalgamation  of  the  companies.  The 
defendants  pleaded  that  their  bill  had  never  passed  into  a  law ;  that  at  the  end 
of  six  months  they  had  given  notice  to  put  an  end  to  the  agreement,  and  that 
they  had  never  taken  the  plaintiff's  land.  The  Court  of  Exchequer  held  the  plea 
to  be  a  good  answer  to  the  action.  This  judgment  was  reversed  in  the  Exchequer 
Chamber,  and  the  latter  judgment  affirmed  in  the  House  of  Lords.  In  the  House 
of  Lords  the  question  was  submitted  to  all  the  common-law  judges,  who  gave  a 
unanimous  opinion,  by  Parke,  B.,  in  favor  of  the  plaintiff,  and  this  opinion  was 
adopted  by  the  House  without  dissent.  The  learned  judge  said,  in  conclusion, 
"  The  right  to  payment  does  not  depend  upon  the  fact  of  making  a  part  of 
the  railway  by  the  amalgamated  company  on  the  plaintiff's  estate,  or  taking,  or 
using,  or  doing  any  injury  to  the  plaintiff's  land  ;  the  right  to  it  depends  simply 
upon  the  efflux  of  three  months'  time  after  the  Amalgamation  Act."  Although 
this  construction  seems  at  first  blush  somewhat  narrow,  and  one  side  of  the 
main  purpose  of  the  agreement,  it  must,  we  think,  be  regarded  as  the  only  just 
and  legitimate  view.  The  contract  did  not  so  much  contemplate  the  taking  of 
any  portion  of  plaintiff's  land,  or  any  estimable  definite  injury  to  his  estate,  as 
the  privilege  of  doing  so,  if  that  should  become  desirable,  and  the  quieting  of 
the  defendants'  lawful  opposition  to,  or  control  of,  the  enterprise,  in  consequence 
of  his  pecuniary  interest  in  the  same.  It  was  the  purchase,  at  a  fixed  price,  of 
the  privilege  or  option  to  deal  with  plaintiff's  estate,  as  one  favoring  the  project, 
and  ultimately  to  place  the  projected  line  in  such  position,  with  reference  to  the 
estate,  as  they  should  find  most  advantageous  to  themselves.  And  as  they  had 
'      *661 


§  14.  SPECIFIC   PERFORMANCE  IN   COURTS   OF  EQUITY.  43 

contracts,  for  the  arrangement  of  conflicting  interests,  in  regard 
to  such  projected  railways.  And  they  have  declined  to  interfere, 
by  injunction,  where  no  such  contract  had  been  definitely  made,1 

enjoyed  what  they  bargained  for,  it  was  clearly  due  that  they  should  pay  the 
stipulated  price  of  their  purchase. 

There  is  a  recent  case  in  New  Hampshire,  Low  v.  Conn.  &  Pass.  Railroad  Co., 
45  New  II.  R.  370,  where  the  question  of  the  right  of  those  who  have  rendered 
extensive  services  in  promoting  the  subscription  to  the  stock  of  a  corporation,  to 
recover  compensation  of  the  corporation  for  time  and  money  so  expended,  is 
extensively  and  ably  discussed. 

It  is  here  said  that  where,  after  the  charter  and  before  the  organization  of  a 
corporation,  services  are  rendered  which  are  necessary  to  complete  that  organ- 
ization, and  after  it  has  been  perfected  the  corporation  elect  to  take  the  benefit 
of  such  services,  knowing  that  they  were  rendered  with  the  understanding  that 
compensation  would  be  made,  it  will  be  held  liable  therefor,  upon  the  ground 
that  it  must 'take  the  benefit  with  the  burden. 

It  was  here  considered  that  the  grantees  in  a  charter  are  the  sole  members 
of  the  corporation  until  associates  are  admitted  by  them,  and  they  may  act  as 
the  corporation  without  admitting  any  others.  Hughes  v.  Parker,  19  N.  H.  R. 
181.  But  to  effect  any  binding  contract  or  corporate  act,  the  concurrence  of  at 
least  a  majority  of  such  grantees  is  requisite ;  but  that  the  sole  power  of  deter- 
mining by  what  measures  and  by  what  agency  the  organization  shall  be  effected 
rests  with  the  grantees,  a  majority  of  whose  votes  will  govern. 

This  case  seems  to  have  gone  mainly  upon  the  authority  of  Hall  v.  Vt.  & 
Mass.  Railroad  Co.,  28  Vt.  R.  401.  But  we  question  whether  the  principle  of 
compensation  is  not  in  fact  carried  in  both  cases  to  the  utmost  verge  of  good 
policy.  In  the  case  of  Low  v.  The  Railway  Co.,  the  plaintiff  was  allowed  to 
recover  the  value  of  a  horse  which  he  delivered  to  one  of  the  efficient  promoters 
of  the  enterprise  upon  a  sort  of  wager,  that  if  the  road  ever  reached  the  town  of 
Bradford  in  Vermont,  the  place  of  the  plaintiff's  residence,  this  promoter  should 
have  his,  the  plaintiff's,  best  horse.  And,  of  course,  as  a  gentleman  of  honor, 
when  the  road  reached  the  point  indicated,  the  horse  was  delivered.  It  is  true 
that  the  court  sent  the  case  back  to  have  the  jury  find  the  fact,  that  this  pro- 
moter performed  efficient  service  for  the  company  in  effecting  its  organization, 
and  that  the  company  adopted  such  service  by  taking  the  benefits  of  it,  and  that 
the  horse  was  no  more  than  a  reasonable  compensation  for  such  service. 

Notwithstanding  our  own  participation  in  the  decision  of  Hall  v.  Vt.  &  Mass. 
Railroad,  we  would  now  feel  that  the  rule  there  adopted  in  regard  to  charging 
service,  rendered  in  effecting  the  organization  of  the  company,  to  the  corpora- 
tion, is  one  of  too  great  laxity,  and  too  susceptible  of  abuse  to  afford  a  safe  guide 
in  these  lax  times,  when  every  possible  avenue  to  corruption  is  sure  to  find  some 
one  desperate  enough  to  enter.  There  should  at  least  be  proof  that  the  service 
was  performed  under  an  expectation  of  compensation,  and  that  the  corporation 

1  Hargreaves  v.  Lancaster  &  Preston  J.  Railway  Company,  1  Railw.  Cas.  416. 


44  PRELIMINARY   ASSOCIATIONS.  §  14. 

notwithstanding  such  representations  on  the  part  of  the  pro- 
moters, as  misled  the  agents  of  the  land-owner.  Thus  showing, 
very  explicitly,  that  the  main  ground  upon  which  the  English 
courts  of  equity  have  proceeded,  in  decreeing  specific  perform- 
ance, and  enforcing  it  by  injunction,  has  been,  to  compel  good 
faith  on  the  part  of  such  incorporations,  in  carrying  into  effect 
any  contracts  on  their  part.  For,  it  is  said  by  the  English  courts 
having  obtained  advantages,  in  consequence  of  the  contracts  and 
assurances  of  the  agents  employed,  in  the  projects,  it  would  tend 
to  destroy  all  confidence  in  any  such  arrangement,  if  they  were 
not  enforced,  which  would  be  *  of  evil  example  and  tend  to  great 
practical  inconvenience.  But  where  the  parties  stand  upon  their 
legal  rights,  as  secured  in  the  act  of  incorporation,  a  court  of 
equity  will  not  interfere.2  In  a  late  case  these  provisional  con- 
tracts seem  to  be  regarded  as  conditional,  depending,  ordinarily, 
for  their  obligation,  as  against  the  corporation,  upon  their  having 
done  anything  under  their  charter  which  the  agreement  enabled, 
them  to  do,  so  as  thereby  to  have  received  the  benefits  of  it.3 

expressly  promised  payment.  And  in  the  Earl  of  Lindsay  v.  The  Great  North- 
ern Railway  Co.,  19  Eng.  L.  &  Eq.  87,  before  V.  C.  Wood,  it  is  said,  "  that  the 
agreement  is  legal  in  itself,  is  now  settled,  by  authority."  In  this  case,  which  was 
a  contract  that  the  trains  should  stop  at  a  particular  station,  the  court  decreed  a 
specific  performance,  giving  the  companies  time  to  make  the  necessary  arrange- 
ments, before  making  the  decree  absolute. 

But  one  railway  company  cannot  bind  itself  to  defray  the  expense  of  an  ap- 
plication to  parliament  by  another  company,  for  the  establishment  of  another 
line  of  railway,  expected  incidentally  to  benefit  the  first  company.  Such  con- 
tract is  beyond  the  ordinary  scope  of  the  powers  of  a  railway  company,  and 
consequently  illegal,  and  such  a  covenant  cannot  be  enforced  in  a  court  of  law, 
however  beneficial  to  the  covenanter  the  objects  of  the  covenant,  if  carried  out, 
might  be.  East  Anglian  Railway  Company  v.  The  Eastern  Counties  Railway 
Company,  7  Eng.  L.  &  Eq.  505  ;  McGregor  v.  The  Deal  &  Dover  Railway 
Company,  16  Id.  180;  Post,  §§56,  187. 

2  Aldred  v.  North  Midland  Railway  Company,  1  Railw.  Cas.  404  ;  Provost 
and  Fellows  of  Eton  College  v.  Great  Western  Railway  Company,  1  Railw. 
Cas.  200. 

8  Gooday  v.  Colchester  &  Stour  Valley  Railway  Company,  15  Eng.  L.  &  Eq. 
596.  In  this  case  the  Master  of  the  Rolls  said :  "  Since  the  act  was  obtained, 
nothing  has  been  done  nor  any  step  taken  to  construct  the  railway.  There  is 
no  distinct  evidence  indeed  that  the  railway  has  been  abandoned,  but  no  money 
has  been  paid,  no  land  taken,  nor  any  movement  made  towards  carrying  on  the 
scheme,  and  the  compulsory  powers  of  the  act  have  never  ceased.  Under  these 
*  662 


§  15.  EQUITY   CONTROLS   PROCEEDINGS   IN   PARLIAMENT.  45 


SECTION    XIV. 

Courts  of  Equity  will  restrain  a  Party  from  Opposition  or  Peti- 
tion in  Parliament. 

Such  cases  not  common  in  practice. 

§  15.  It  is  held  in  the  English  courts  of  equity  altogether  com- 
petent, and  within  their  appropriate  jurisdiction,  to  restrain  a 
party  from  opposing  a  bill  in  parliament,  by  petition,  if  a  proper 
case  is  made  out,  and  by  parity  of  reason  from  pursuing  a  peti- 
tion in  favor  of  an  act  of  parliament.1  But  such  cases  are  not 
common  *  in  practice,  and  dependent  upon  peculiar  circum- 
stances. As  where  proceedings  in  parliament  are  in  violation  of 
express  covenants,  or  for  some  other  reason,  in  bad  faith,  and 
where  damages,  at  law,  are  no  adequate  compensation.  These 
cases  are  therefore  determined  much  upon  the  same  grounds  as 
other  cases  of  specific  performance,  and  come  properly  under 
consideration  in  this  connection. 

circumstances,  I  cannot  say  that  the  company  has  adopted  the  agreement,  or  is 
bound  by  its  terms ;  and  therefore  I  do  not  think  I  can  compel  them  to  admit 
the  contract  in  an  action  at  law."  Very  recently,  in  Williams  v.  The  St. 
George's  Harbor  Company,  30  Law  Times  84  ;  s.  c.  2  De  G.  &  J  .  547,  it  was 
held  by  the  Master  of  the  Rolls,  that  an  agreement  entered  into  by  the  pro- 
moters of  a  company  before  incorporation,  is  not  binding  on  the  company  when 
incorporated,  unless  they  subsequently  do  some  act  amounting  to  an  adoption  of  it. 
This  seems  now  to  be  the  settled  doctrine  in  the  English  courts.  Ante,  §  3,  p.  636. 
1  The  Stockton  &  Hartlepool  Railway  Company  v.  The  Leeds  &  Thirsk  and 
The  Clarence  Railway  Companies,  5  Railw.  Cas.  691.  In  this  case  the  injunc- 
tion was  granted  by  the  Vice-Chancellor  of  England,  Shadwell,  but  the  order 
discharged,  by  the  Lord  Chancellor,  Cottenham,  on  the  ground  that  no  proper 
case  for  the  interference  of  a  court  of  equity  was  made  out,  but  distinctly  affirm- 
ing the  jurisdiction.  The  Lord  Chancellor  says  :  "  This  court,  therefore,  if  it 
see  a  proper  case,  connected  with  private  property  or  interest,  has  just  the  same 
jurisdiction  to  restrain  a  party  from  petitioning  against  a  bill  in  parliament  as 
if  he  were  bringing  an  action  at  law,  or  asserting  any  other  right  connected  with 
the  enjoyment  of  the  property  or  interest  which  he  claims."  Heathcote  v.  The 
North  Staffordshire  Railway  Company,  6  Railw.  Cas.  358.  In  this  last  case  it 
was  held  by  the  Lord  Chancellor,  that  a  contract  to  make  a  railway  is  not  one  of 
which  a  court  of  equity  will  compel  the  specific  performance,  but  will  leave  the 
parties  to  their  legal  rights. 

*663 


46  PRELIMINARY   ASSOCIATIONS.  §  16. 


SECTION    XV. 

.Contracts  to  withdraw  opposition  to  Railway  Projects,  and  to  keep 
this  secret,  against  sound  policy  and  would  seem  to  be  illegal. 

1.  Principle  of  foregoing  decisions  obscure.     I  6.  Act  of  incorporation  should  not  be  varied 

2.  Not  adopted  in  this  country  unless  terms         by  oral  testimony. 

inserted  in  charter.  7.   Contracts  to  quiet  opposition  not  favored 

3.  Recent  change  of  views  in  English  courts.  in  this  country. 

3-5.   Statement  of  late  case  in  which  prin-     n.  5.    Recent  English  and  American   deci- 
ciple  of  Edwards  v.  Grand  Junction  Rail-  I       sions. 
way  is  doubted. 

§  16.  1.  The  principle  of  the  foregoing  decisions,  upon  the 
subject  of  specific  performance  of  contracts  with  the  promoters 
of  railway  projects  being  enforced  in  courts  of  equity  against 
the  company,  is,  to  say  the  least  of  it,  somewhat  obscure.  Re- 
garded as  illegal  contracts,  it  does  not  seem  very  apparent  how 
they  can,  with  much  show  of  consistency,  be  specifically  enforced 
in  a  court  of  equity.  Ordinarily  such  contracts  are  not  the  sub- 
ject of  an  action  for  their  enforcement,  in  any  court.  That 
there  may  be  extreme  cases,  where  one  has  gained  an  unconscion- 
able advantage  by  enticing  a  less-experienced  person  into  parti- 
cipation in  an  illegal  transaction,  that  a  court  of  equity  will 
compel  the  successful  party  to  relinquish  the  fruits  of  the  fraud, 
may  be  true.  But  the  general  proposition  laid  down,  by  Lord 
Eldon,  upon  this  subject  in  the  Vauxhall  Bridge  case,1  does  not 
seem  to  gain  much  support  from  the  case  cited  by  him.2 

2.  It  seems  to  us  impossible  to  justify  such  contracts,  beyond 
the  *  mere  sale  of  a  definite  pecuniary  interest.     And  even  that, 

1  Ante,  §  7,  Jacob,  64. 

"  Neville  v.  Wilkinson,  1  Brown,  C.  C  543.  The  principle  of  this  case,  if  we 
comprehend  it,  is  a  familiar  one.  It  is  that  one  who  has  represented  to  a  creditor 
of  his  debtor,  or  to  the  father  of  the  intended  wife  of  his  debtor,  that  his  debt 
did  not  exceed  a  specified  sum,  shall  not  be  allowed  to  enforce  against  such 
debtor  any  larger  sum,  the  marriage  having  taken  place  in  confidence  of  such 
representation.  This  representation  was  made,  indeed  by  connivance,  between 
the  husband  and  his  creditor,  to  deceive  his  wife's  father.  But  so  far  as  the 
creditor  is  concerned,  the  decision  seems  to  rest  upon  the  familiar  principle  of 
an  estoppel  in  pais.  Shirley  v.  Ferrers,  cited  in  St.  John  v.  St.  John,  11 
Vesey,  536. 

*664 


§  16.  CONTRACTS   AGAINST   SOUND   POLICY.  47 

it  would  seem,  should  be  secured  by  the  insertion  of  definite  pro- 
visions in  the  charter.  We  cannot  find  that  any  attempt  has 
been  made,  in  this  country,  to  enforce  against  a  corporation  a 
contract  made  with  the  promoters  to  quiet  opposition  in  the 
legislature.  That  it  is  often  charged,  that  such  and  similar 
contracts  are  made  by  the  promoters  of  railway  projects  with 
the  friends  of  rival  projects,  and  other  opposers,  and  with  the 
members  of  the  legislature  even,  and  large  sums  of  money  dis- 
bursed in  fulfilment  of  such  contracts,  which  is  expected  to  be 
refunded  by  the  company,  and  which  is  so  refunded  sometimes, 
is  undeniable.  But  we  apprehend,  there  is  in  this  country  but 
one  opinion  in  regard  to  the  legality  and  decency  of  such  con- 
tracts, and  that  those  who  expect  to  profit  by  them  have  far  too 
much  sagacity  to  trust  their  redress  to  the  judicial  tribunals  of 
the  country.  But  that  turnpike  and  bridge  companies,  and  ex- 
isting railways,  whose  profits  are  to  be  seriously  affected  by  the 
establishment  of  new  railways,  and  land-owners,  whose  property 
is  to  be  affected  by  such  railways,  may  properly  stipulate  for 
reasonable  indemnity,  as  the  price  of  withdrawing  opposition, 
there  can  be,  we  apprehend,  no  question.  But  it  seems  to  us, 
that  the  only  proper  mode  of  securing  this  indemnity  is,  by  the 
insertion  of  special  clauses  in  the  charter  of  the  new  company. 
There  can  be  no  question  in  regard  to  the  duty  of  courts  of 
equity,  in  a  proper  case  for  their  interference,  to  enforce  an  in- 
demnity secured  by  the  act.3 

3.  We  infer  from  the  late  decision  of  the  House  of  Lords  up- 
on this  subject,  that  the  views  of  the  courts,  in  that  country,  are 
already  undergoing  some  change  upon  this  subject.  In  the  case 
of  Caledonian  and  Dumbartonshire  Junction  Railway  v.  Helens- 
burgh Harbor  Trustees,4  the  facts  were  that  the  magistrates  of 
Helensburgh  agreed  with  the  provisional  committee  of  a  pro- 
jected railway  company  to  allow  the  company  certain  privileges 
of  taking  land  in  the  town,  and  laying  rails  for  a  side  track  to 
the  harbor  of  H.,  the  company  to  pay  all  the  expenses  of  enlarg- 
ing the  harbor,  and  of  obtaining  an  act  of  parliament  for  that 
purpose.     The  Harbor  Act  was  obtained,  and  also  the  Railway 

3  Gray  v.  The  Liverpool  &  Bury  Railway,  4  Railw.  C.  235  ;  Ante,  §  181. 

4  Before  the  House  of  Lords  in  June,  1856  ;  Law  Rep.  Oct.  1856,  350  ;  S.  c. 
2  Macq.  Ii.  of  L.  391  ;  s.  c.  39  Eng.  L.  &  Eq.  28. 


48  PRELIMINARY   ASSOCIATIONS.  §  16. 

Act.  In  the  latter  there  was  no  provision  authorizing,  or  refer- 
ring to,  the  previous  *  agreement,  and  the  railway  company  re- 
fused to  perform  their  part,  and  did  not  claim  performance  of 
the  other  part. 

4.  On  a  bill  for  specific  performance,  brought  by  the  harbor 
trustees,  held,  reversing  the  decision  of  the  court  of  session,  that 
specific  performance  could  not  be  decreed,  because  the  railway 
company  had  no  power  to  make  a  harbor,  which  would  be  en- 
tirely beside  the  object  of  their  incorporation. 

5.  It  is  said  by  the  Lord  Chancellor,  and  by  Lord  Brougham, 
"  It  seems  that  Edwards  v.  The  Grand  Junction  Railway,  1  Railw. 
C.  173,  and  Lord  Petre  v.  The  Eastern  Counties  Railway,  Id. 
462,  and  other  similar  cases,  which  have  followed  them,  are  un- 
supported in  principle,  but  these  cases  are  distinguished  from  the 
present,  by  the  nature  of  the  contracts  sought  to  be  enforced, 
which  were  matters  within  the  scope  of  the  respective  charters. 
The  custom  sometimes  adopted  by  committees  in  parliament  of 
omitting  special  clauses  from  acts  of  incorporation,  on  the  agree- 
ment of  the  promoters  that  the  objects  proposed  to  be  attained 
by  these  clauses  should  be  carried  out,  appears  to  be  illegal,  and 
improper." 

6.  It  seems  very  obvious,  that,  if  these  clauses  can  be  foisted 
into  the  act  of  incorporation,  by  oral  testimony,  at  the  will  of 
interested  parties,  it  is  exposing  the  operation  of  the  act  to  all 
the  inconveniencies  and  inconsistencies  which  might  be  expected 
to  follow  from  subjecting  written  contracts  to  the  same  mode 
of  exposition.  Sound  views  and  true  policy  seem  to  us  to  re- 
quire a  strict  adherence  to  the  act  of  the  legislature,  as  in  other 
cases. 

7.  And  it  is  very  questionable,  whether,  in  this  country,  the 
contract  to  sell  a  definite  pecuniary  interest,  —  as  land  which  is 
required  for  the  construction  of  the  road,  or  turnpike  and  canal 
property,  the  value  of  which  is  to  be  seriously  affected  by  the 
railway  going  into  operation,  —  at  a  price  agreed,  made  with  the 
promoters  of  the  railway,  but  not  inserted  in  the  act,  and  which 
is  not  unreasonable,  can  be  enforced  against  the  company.  It 
is  certain,  we  think,  that  a  contract  going  altogether  beyond  this, 
and  stipulating  large  sums,  beyond  the  supposed  value  of  any 

*665 


§  16.  CONTRACTS   AGAINST   SOUND   POLICY.  49 

pecuniary  interest  to  be  secured,  and  for  the  obvious  purpose  of 
quieting  opposition,  or  securing  favor  and  support,  could  not  be 
enforced  here,  even  against  the  contracting  parties,  and  much 
less  against  the  company,  or  at  all  events  that  it  ought  not  to 
be.5 

6  And  in  the  more  recent  cases  upon  this  subject  very  little  countenance  is 
given  to  the  doctrine  of  the  earlier  English  cases,  which  held  the  contracts  of  the 
*  promoters  of  railways  binding  upon  the  company,  upon  the  slightest  grounds  of 
adoption,  and  often  by  the  most  forced  constructions.  In  the  case  of  Preston  v. 
Liverpool,  Manchester  &  N.  Railway,  35  Eng.  L.  &  Eq.  92,  although  the  case 
is  professedly  decided  upon  the  construction  of  the  particular  contract,  yet  it  is 
not  difficult  to  perceive,  in  the  very  sensible  reasons  assigned  for  the  construc- 
tion adopted,  a  manifest  disposition  to  abandon  the  former  ground  assumed  by 
the  courts  upon  this  subject.  The  point  is  thus  stated  in  the  note  to  this  latter 
case  :  "  II.  &  Y.  projectors  of  a  railway  company  entered  into  a  treaty  with  the 
plaintiff  (a  land-owner),  whereby  the  latter  agreed  not  to  oppose  their  bill  in 
parliament,  and  an  agreement  was  executed  by  them,  as  the  executive  directors 
of  the  railway  company,  by  which  the  company,  upon  its  incorporation,  was  to 
pay  to  the  plaintiff  £1,000  for  land  of  which  he  was  the  freeholder,  and  which 
was  required  for  the  purpose  of  making  the  railway,  and  £4,000  for  residential 
damage."  There  were  other  stipulations  in  regard  to  tunnelling  a  portion  of 
plaintiff's  property,  and  erecting  a  station  upon  another  portion.  The  company 
was  incorporated,  but  not  being  able  to  raise  sufficient  funds,  no  attempt  was 
made  to  construct  the  railway,  and  the  money  subscribed  was  returned  to  the 
shareholders.  "  Held  that  the  contract  was  conditional,  upon  the  making  of  the 
railway,  and  therefore  that,  the  plaintiff  was  not  entitled  to  moneys  payable 
thereunder.  And  qurere,  whether  a  company  can  be  considered  as  the  suc- 
cessors or  assignees  of  the  projectors,  so  as  to  come  into  existence  subject  to 
their  contracts."  See  Ed.  P.  &  Dundee  Railw.  v.  Philip,  in  Ho.  L.  28  Law  T. 
345.     S.  C.  39  Eng.  L.  &  Eq.  41. 

There  are  numerous  English  cases  upon  this  point  since  the  date  of  the  second 
edition  of  this  work.  In  Aldham  v.  Brown,  2  El.  &  El.  398,  in  Exchequer 
Chamber,  the  extent  of  the  responsibility  of  a  subscriber  to  the  preliminary  as- 
sociation is  extensively  discussed  upon  an  extended  and  somewhat  refined  state 
of  pleadings.  The  result  may  be  briefly  stated  as  amounting  to  nothing  more 
than  that  such  subscriber  is  responsible  for  his  ratable  proportion  of  the  provi- 
sional expenses,  whether  the  scheme  is  finally  abandoned  or  not. 

Where  a  deposit  of  eight  per  cent  upon  the  estimated  cost  of  a  railway  is  paid 
into  court,  in  compliance  with  the  parliamentary  orders  upon  filing  petitions  for 
certain  railways,  the  proportion  of  such  deposit  will  be  paid  out  of  court  to  the 
party  duly  representing  the  petitioners,  upon  any  of  the  railway  projects  being 
abandoned.  Aberystwith  Eailw.  in  re  7  Jur.  N.  S.  510.  But  upon  the  question 
being  brought  to  the  attention  of  the  Lords  Justices,  id.  564,  it  was  doubted 
whether  the  statute  allowed  the  money  to  be  repaid  merely  upon  the  withdrawal 

VOL.  I.  4  *  666 


50  PRELIMINARY  ASSOCIATIONS.  §  16. 

of  the  petition,  and  no  order  was  made.  But  upon  principle  it  -would  seem 
there  could  be  no  difference  between  the  cases  named  specifically  in  the  stat- 
ute for  repayment  of  the  money,  that  of  -withdrawal  of  the  petition,  and  such 
as  denial  of  the  petition  or  refusal  to  allow  the  party  to  proceed.  See  Dart- 
mouth &  Torbay  Railw.  Co.,  in  re  9  Weekly  Rep.  609  V.  C.  K.  It  is  no  ob- 
jection that  the  requisite  parliamentary  deposit  is  made  from  borrowed  funds. 
Scott  v.  Oakely,  10  Jur.  N.  S.  431,  648.  And  a  court  of  equity  will  enforce 
any  agreement  made  with  the  lender  to  compel  the  repayment  of  such  deposit, 
ib.  But  an  agreement  by  an  existing  railway  to  contribute  towards  the  deposit 
required  to  promote  the  grant  of  other  lines,  is  held  ultra  vires.  So  also  is  an 
agreement  by  an  existing  railway  to  take  shares  in  the  projected  company,  or  to 
establish  traffic  regulations  with  reference  to  future  extensions.  But  such  an 
agreement  will  not  be  ultra  vires  where  its  validity  is  expressly  made  dependent 
upon  the  sanction  of  parliament.  Maunsell  v.  M.  Great  Western  (Ireland) 
Railw.  Co.,  1  H.  &  M.  130  ;  s.  c.  9  Jur.  N.  S.  660.  See  Scottish  N.  E.  Railw. 
v.  Stewart,  3  Macq.  H.  L.  Cas.  382. 

But  where  the  company  stipulate  to  do  acts  ultra  vires,  there  is  no  implication 
that  this  stipulation  shall  be  held  conditional  upon  the  company  having  or  being 
able  to  obtain  legislative  authority  to  do  them.  And  if  the  acts  so  stipulated  to 
be  done  are  component  parts  of  an  entire  agreement  embracing  other  matters 
within  the  powers  of  the  company,  an  injunction  will  be  granted  against  carry- 
ing any  portion  of  the  agreement  into  effect.  Hattersley  v.  Shelburne  (Earl), 
7  Law  T.  N.  S.  650. 

Where  six  different  lines  of  railway,  forming  one  general  scheme,  were  pro- 
moted by  the  same  persons,  but  subsequently  four  of  them  abandoned,  and  an 
act  obtained  authorizing  the  construction  of  the  other  two,  by  which  it  was  pro- 
vided that  the  expenses,  costs,  and  charges  of  obtaining  and  passing  the  act,  and 
incidental  and  preparatory  thereto,  should  be  paid -fey  the  incorporated  com- 
pany ;  it  was  held  the  costs  and  expenses  connected  with  the  abandoned  lines 
were  properly  chargeable  on  the  company.     Tilleard,  in  re  9  Jur.  N.  S.  1217. 


$  17.         ORIGIN   AND   DIFFERENT   CLASSES   OF   CORPORATIONS.  51 

*  CHAPTER    III. 

RAILWAYS   AS   CORPORATIONS. 

•SECTION    I. 

Origin  and  Different  Classes  of  Corporations. 


The.  existence  of  corporations  dates  very 

early. 
The  different  kinds  of  corporations.    Sole 

and  aggregate. 
This    work    treats   chiefly  of   aggregate 

joint-stock  corporations. 
Corporations   are   either  ecclesiastical  or 

lay. 


6.  Corporations  are  public  or  private. 

7.  Private  corporations,  where  stock  is  pri- 

vate property. 

8.  Public  corporations,  where  stock  is  owned 

and  the  management  retained  by  the 
state. 

9.  It   does   not  affect  the  private  character 
of  a  corporation  that  the  state  or  the 


5.  So  they  are  divided  into  eleemosynary  and  J  United  States  own   a  portion  of  the 

civil  corix>rations.  stock. 

§  17.  1.  The  idea  of  corporate  action,  i.  e.  by  means  of  mere 
legal  entities,  or  creations  of  the  law,  seems  to  have  existed  from 
a  very  early  day  in  the  history  of  civilization.  They  seem  to 
have  been  allowed  by  the  laws  of  Solon,  and  by  those  of  the 
Twelve  Tables ;  and  may  very  probably  have  existed  at  a  still 
earlier  period.1 

2.  There  have  existed  various  kinds  of  corporations,  distin- 
guished sometimes  by  the  form  of  the  association  or  the  nature 
of  the  organization,  and  sometimes  by  the  character  of  the  work 
to  which  the  corporate  body  was  devoted.  Thus  corporations, 
in  the  English  law,  are  either  sole  or  aggregate.  By  the  former 
is  understood  corporations  existing  in  a  single  individual,  as  the 
rector  of  a  church,  or  the  judge  of  a  particular  court,  as  the  judge 
of  probate  in  whose  name  securities  are  taken  and  to  be  prose- 
cuted, or  any  other  official  name,  as  the  treasurer  of  a  town, 
county,  &c,  in  all  which  cases  the  single  individual,  maintain- 

1  1  Kent,  Comm.  524,  8th  Table,  allowed  societies  or  private  companies  to 
make  their  own  by-laws,  not  being  inconsistent  with  the  public  law.  See  also  2 
Kent,  Comm.  268,  note ;  Dig.  Rom.  Civ.  Law,  47,  22,  4. 

*4,  5 


52  RAILWAYS  AS  CORPORATIONS.  '  §  17 

ing  for  the  time  the  particular  official  relation,  constitutes  the 
quasi  corporation.  Aggregate  corporations  are  when  the  body 
consists  of  more  than  one  member,  whether  such  members  are 
shareholders,  as  in  the  case  of  a  mere  business  corporation,  or  are 
composed  of  different  subdivisions  of  the  entire  corporation ;  as 
the  mayor,  aldermen,  and  common  council  of  a  city  or  other 
municipality.2 

3.  The  corporations  with  which  we  are  chiefly  concerned,  and 
which  will  be  mainly  considered  in  the  following  work,  are  ag- 
gregate business  corporations,  with  a  joint-stock  capital,  such  as 
banks,  railways,  manufacturing  and  other  similar  organizations. 

4.  But,  as  almost  all  kinds  of  corporations  have  in  some  sense 
analogous  powers  and  functions,  it  will  not  be  practicable  to  dis- 
cuss the  law  applicable  to  one  class  without  at  the  same  time  to 
some  extent  considering  the  law  applicable  to  all  other  classes 
of  corporations.  It  may  be  proper  therefore  to  mention  here, 
that  aggregate  corporations  may  be  ecclesiastical  or  lay,  i.  e. 
their  functions  may  have  reference  exclusively  to  religious  mat- 
ters, as  a  parish  or  church,  whereby  they  are  appropriately  desig- 
nated, as  ecclesiastical  or  religious  bodies ;  or  they  may  have 
reference  only  to  secular  matters,  whereby  they  are  more  appro- 
priately denominated  lay  corporations.  The  distinction  is  how- 
ever sometimes  not  easily  determined,  since  the  business  and  func- 
tions of  a  corporation  may  approach  so  nearly  the  one  or  the 
other  as  not  inappropriately  to  be  classed  among  either.     Thus 

"  Co.  Litt.  8  b,  250  a ;  2  Kent,  Cormn.  273,  274.  We  have  taken  no  time  to 
discuss  the  nature  or  importance  of  sole  corporations,  since  very  few  exist  in  the 
American  states,  and  where  any  such  do  exist,  it  is  so  enacted  by  express  statute, 
in  order  to  secure  perpetual  succession  and  transmission  of  rights  and  duties, 
without  encumbering  the  succession  and  transmission  with  those  formalities, 
which  would  always  prove  laborious  and  sometimes  difficult ;  and  by  reason 
thereof,  there  would  constantly  arise  embarrassing  questions,  which,  by  declaring 
the  office  a  perpetual  corporation,  is  wisely  saved. 

In  many  of  the  cases  already  alluded  to,  and  others  which  might  be  named, 
as  to  those  individuals  who  sustain  the  official  character  of  sole  corporations,  it 
is  not  deemed  important  that  the  statute  conferring  such  functions  should  de- 
clare them  corporations,  or  to  possess  corporate  rights  and  duties.  All  that  is 
required  is,  that  it  should  be  provided  that  contracts  made  to  them  may  be  sued 
in  the  name  of  their  official  successors,  or  that  in  any  other  form  .such  individ- 
ual should  be  declared  by  his  official  name  to  have  the  power  to  contract  for 
the  benefit  of  himself  and  his  successors  perpetually. 


§  17-         ORIGIN  AND   DIFFERENT   CLASSES   OF   CORPORATIONS.  53 

the  English  Universities  of  Oxford  and  Cambridge  are  now  re- 
garded as  merely  lay  or  civil  corporations,  although  at  one  time 
they  were,  with  propriety,  classed  among  ecclesiastical  corpora- 
tions.3 

5.  Corporations,  too,  are  divided  into  eleemosynary,  or  such 
as  disburse  only  charity  and  subsist  for  that  purpose  only,  —  such 
as  schools,  colleges,  and  hospitals,  —  and  those  which  are  mere 
civil  or  political  bodies  intrusted  with  certain  rights  or  duties, 
and  required  to  perform  certain  functions,  more  or  less  connected 
with  the  polity  of  the  state  or  nation,  —  such  as  towns,  counties, 
school  districts,  or  railways,  banks,  and  manufacturing,  or  merely 
business  corporations. 

G.  Corporations  are  either  public  or  private.  Public  corpora- 
tions embrace  all  the  municipal  subdivisions  of  the  state  ;  such 
as  counties,  towns  and  cities,  and  school  districts,  and  other 
similar  organizations.  Private  corporations  include  all  aggre- 
gate, joint-stock,  incorporated  companies,  whoso  capital  stock  is 
owned  by  private  persons.  But  such  joint-stock  corporations  as 
possess  no  shares  not  owned  by  the  state  or  nation  are  also  re- 
garded as  public  corporations,  the  same  as  the  municipalities  of 
the  state.  The  law  in  regard  to  railways  was  thus  stated  in  the 
former  edition  of  this  work. 

7.  Railways  in  this  country,  although  common  carriers  of 
freight  and  passengers,  and  in  some  sense  regarded  as  public 
works,  are  ordinarily  private  corporations.'1  By  private  corpora- 
tions nothing  more  is  implied,  than  that  the  stock  is  owned  by 
private  persons. 

8.  If  the  stock  is  owned  exclusively  by  the  state,  the  corpo- 
ration is  a  public  one.  And  such  public  corporations  are  under 
the  control  of  the  legislature,  the  same  as  municipal  corporations, 
and  ordinarily  acquire  no  such  vested  rights  of  property  as  are 

3  Angell  &  Ames,  §  40 ;  1  Bl.  Comm.  471. 

4  There  is  no  necessity  for  these  public  functions  being  confined  to  aggregate 
corporations,  as  is  the  universal  practice  in  this  country.  The  same  franchises 
and  immunities  might  be  conferred  upon  any  private  person,  at  the  election  of 
the  legislature,  as  was  done  by  the  legislature  of  New  York  upon  Fulton  and 
Livingston,  in  regard  to  steamboat  navigation,  which  grant  was  held  valid  but  for 
the  United  States  Constitution.  And  whoever  was  the  grantee,  the  same  rights, 
duties,  and  liabilities  would  result  from  the  grant,  whether  to  a  natural  person  or 
to  a  corporation.     Ante,  §  1,  pi.  6. 


54  RAILWAYS   AS   CORPORATIONS.  §  17, 

beyond  the  control  of  legislative  authority.6  The  American  cases 
going  to  confirm  this  proposition,  and  to  show  that  railways  are 
private  corporations,  are  numerous.7 

9  Dartmouth  College  v.  Woodward,  4  Wlieaton,  518,  668 ;  2  Kent,  Comm.  7th 
ed.  (275)  305  and  notes.  If  the  question  were  entirely  new,  it  might  be  re- 
garded as  admitting  of  some  doubt,  perhaps,  how  far  the  American  states  could 
with  propriety  undertake  such  extensive  public  works,  whose  benefit  enures 
almost  exclusively  to  private  emolument  and  advantage.  But  the  practice  is 
now  pretty  firmly  established.  And  there  seems  to  be  no  proper  tribunal  to 
determine  such  questions  between  the  states  and  the  citizens.  Public  opinion 
is  the  only  practical  arbiter  in  such  cases.  And  that  is  so  much  under  the  con- 
trol of  interested  parties,  ordinarily,  that  its  admonitions  are  not  likely  to  be  much 
dreaded  by  those  who  exercise  the  state  patronage. 

7  Donnaher  v.  State  of  Mississippi,  8  Smedes  &  M.  649,  661.  By  the  court, 
in  Trustees  of  the  Presbyt.  Society  of  Waterloo  v.  Auburn  &  Rochester  Railw., 
3  Hill,  570  ;  Dartmouth  Coll.  v.  Woodward,  1  New  II.  R.  Ill,  116  ;  Eustis  v. 
Parker,  1  New  H.  R.  273  ;  Dearborn  v.  Boston,  C.  &  Montreal  Railw.  Co.,  4 
Foster,  179,  190;  Ohio,  &c.  Railroad  Co.  v.  Ridge,  5  Blackf.  78;  Bonaparte 
v.  Camden  &  Amboy  R.,,1  Baldwin's  C.  C.  205,  222  ;  Bundle  v.  Delaware  & 
Raritan  Canal  Co.,  1  Wallace,  Jr.  275  ;  R.  &  G.  R.  v.  Davis,  2  Dev.  &  Batt. 
451 ;  Thorpe  v.  R.  &  B.  R.  27  Vt.  R.  140.  This  last  case  discusses  at  some 
length  the  right  of  legislative  control  over  private  corporations,  whose  functions 
are  essentially  public,  like  those  of  banks  and  railways.  The  importance  of 
such  control,  within  reasonable  limits  and  under  proper  restrictions,  both  to  the 
public  interest  and  that  of  these  corporations,  will  be  obvious  when  we  consider 
the  magnitude  of  the  interests  committed  to  such  corporations,  and  the  vast 
amount  of  capital  invested  in  such  enterprises.  We  make  no  account  of  the 
banking  capital  of  the  country,  most  of  which  is  occupied  in  business  more 
or  less  connected  with  railway  traffic.  But  the  capital  and  business  of  rail- 
ways is  almost  incalculable. 

The  length  of  railway  in  the  United  Kingdom  of  Great  Britain  and  Ireland  in 
1857,  was  8,635  miles,  and  the  cost,  in  round  numbers,  £311,000,000  sterling, 
being  more  than  one  and  one  half  billion  of  dollars.  The  amount  invested  in 
this  country  was  about  half  as  much  in  1851,  and  the  number  of  miles  in  opera- 
tion nearly  twice  as  great,  and  almost  as  much  more  then  in  progress,  a  large  por- 
tion of  which  is  now  complete  (1857).  When  it  is  considered  that  these  private 
corporations,  possessing  such  vast  capital,  have  engrossed  almost  the  entire  travel 
and  traffic  of  the  country,  and  that  their  powers  and  functions  come  in  daily  con- 
tact with  the  material  interests  of  almost  every  citizen  of  this  great  empire,  the 
importance  of  their  being  subjected  to  a  wise  and  just  supervision  can  scarcely 
be  overestimated.  This  can  only  be  permanently  secured  by  wise  and  prudent 
legislation.  And  to  be  of  much  security  to  public  interests,  it  must  be  by  general 
acts,  as  it  is  in  many  of  the  states,  and  in  England,  since  1845.  It  is  worthy  of 
remark,  we  think,  that  while  in  the  United  states  a  large  proportion  of  the  cap- 
ital invested  in  railways  has  proved  hitherto  wholly  unproductive,  and  much  of 
it  has  already  proved  a  hopeless  loss,  and  a  very  small  proportion  of  the  whole 


§  17.        ORIGIN  AND  DIFFERENT   CLASSES   OF   CORPORATIONS.  55 

*  9.    It  does  not  alter  the  character  of  a  private  corporation, 
that  the  state  or  the  United  States  own  a  portion  of  the  stock.8 

can  be  said  to  have  been  at  all  remunerative,  in  Great  Britain  the  whole  amount 
of  their  loan  and  preference  stock,  secured  virtually  by  way  of  mortgage,  has 
produced,  upon  an  average,  more  than  five  per  cent,  and  the  ordinary  stock  has 
produced  an  average  dividend  of  more  than  three  per  cent ;  and  in  France  rail- 
ways have  proved  still  more  productive,  making  average  dividends  throughout 
the  empire,  for  the  year  1857,  of  nine  per  cent  upon  the  whole  investment,  some 
as  high  as  sixteen  per  cent,  and  one,  the  Lyons  and  Marseilles  line,  twenty-three 
per  cent.  It  is  difficult  to  account  for  the  difference  in  results,  without  suspect- 
ing something  wrong  somewhere.  Since  the  former  edition  of  this  work,  con- 
siderable advance  has  been  made  in  railway  enterprise  throughout  the  world. 
Railways  have  become  so  nearly  a  military  necessity,  in  order  to  enable  any 
nation  of  considerable  power  and  prominence  in  relative  national  position  to 
maintain  its  due  weight  and  importance,  that  very  extensive,  and  in  some  in- 
stances vast  works  of  that  kind  have  been  accomplished,  mainly  upon  that  ground. 
The  experience  of  the  national  government  during  the  late  civil  war  has  removed 
all  question  of  the  right  of  that  government  to  charter  and  construct,  or  aid  in 
the  construction  of  extensive  and  independent  lines  throughout  the  country  for 
military  and  mail  purposes  alone.  It  is  stated  that  the  present  length  of  railway 
line  in  the  United  States  is  about  32,000  miles,  at  an  average  cost  of  $  40,000  per 
mile,  equal  to  $  1,280,000,000  in  all,  and  there  is  every  reason  to  believe  the 
Atlantic  and  Pacific  coasts  will  speedily  be  united  by  railway.  The  advance  in 
Great  Britain  and  Ireland  has  been  very  great  since  the  first  edition  of  this  work, 
but  probably  not  in  the  same  proportion  as  here. 

The  number  of  miles  of  railway  now  in  operation  in  France  is  about  8,000, 
at  a  cost  of  nearly  $  1,300,000,000,  and  producing,  according  to  the  late  returns 
of  the  Minister  of  Public  Works,  a  net  income  or  dividend  of  nearly  nine  per 
cent.  This  is  the  sanie  rate  of  income  produced  by  the  French  railways  in  1858, 
as  stated  above.  The  average  income  from  railway  investment  in  Great  Britain 
and  Ireland  is  probably  not  above  half  that  sum ;  and  in  the  United  States  it  is 
perhaps  even  below  that.  But  our  country  is  so  immensely  extensive,  and  easy 
and  rapid  intercommunication  between  all  portions  of  the  empire  so  much  a  state 
necessity,  that  it  might  naturally  be  expected  that  for  a  long  time  considerable 
portions  of  the  line  should  remain  unproductive  in  a  pecuniary  point  of  light. 
There  have  been  great  changes  in  the  policy  of  railway  construction  and  man- 
agement since  this  work  first  appeared,  and  mainly  in  the  right  direction. 
Reckless  and  destructive  railway  management  is  now,  we  trust,  becoming  the 
rare  exception  in  this  country,  although  there  is  still,  no  doubt,  great  room  for 
improvement.  There  is  probably  no  other  country  in  the  world  where  it  is  so 
difficult  to  bring  the  employees  and  others  connected  in  various  relations  with 
railway  management,  to  understand  and  appreciate  the  indispensable  importance 
of  bringing  everything  to  the  unbending  control  of  a  single  will.  This  is  not 
only  indispensable  for  success,  but  equally  for  security. 

8  Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9  Wheaton, 

*  6 


56 


RAILWAYS   AS   CORPORATIONS. 


§  17  a. 


But  a  turnpike  company  or  other  corporation,  managed  exclu- 
sively by  state  officers,  and  at  the  expense  and  for  the  benefit  of 
the  state  at  large,  is  a  public  corporation.9 


SECTION    II. 


How  Corporations  are  created. 


1.  Corporations  created  by  grant  of  the  sov- 

ereignty.    This  may  be  proved,  by  im- 
plication or  by  presumption. 

2.  The  sovereignty  may  establish  corporations 

by  general  act,  or  delegation  or  procura- 
tion. 

3.  Different  forms  of  defining   a   corpora- 

tion. 


4.  TJie  corporate  action  of  corporations  re- 

stricted to  state  creating  them. 

5.  It  may  act  by  its  directors  and  agents  in 

other  states. 
n.  10.  But  cannot  properly  transfer  its  entire 
business  to  another  state. 

6.  A  college  located  at  one  place  cannot  es- 

tablish a  branch  at  another. 


§  17  a.  1.  Strictly  speaking,  corporations  can  only  be  created 
by  the  authority  of  the  sovereignty,  either  state  or  national.1 
Hence,  the  ordinary  mode  of  creating  joint  stock  business  cor- 
porations is  by  charter,  by  way  of  legislative  act  of  the  several 
states.  But  as,  in  some  cases,  the  record  of  such  charters  may 
not  have  been  preserved,  and  in  other  cases,  the  grant  of  cor- 
porate powers  may  have  been  by  way  of  implication  rather  than 
express  legislative  act,  the  courts  have  allowed  corporations  to 
prove  their  corporate  character  and  capacity,  by  evidence  that 
such  character  and  capacity  is  reasonably,  or  necessarily,  im- 

904 ;  Miners'  Bank  v.  United  States,  1  Greene  (Iowa),  553 ;  Turnpike  Co.  v. 
Wallace,  8  Watts,  316.  Bardstown  &  Lou.  Railway  v.  Metcalfe,  4  Met. 
(Ky.)  199. 

9  Sayre  v.  North  W.  Turnpike  Co.,  10  Leigh,  454.  But  see  Toledo  Bank  v. 
Bond,  1  Ohio  State  Reports,  622,  657.  Opinion  of  Slorrs,  J.  in  Bradley  v.  New 
Y.  &  New  H.  R.  21  Conn.  R.  294,  304,  305. 

1  As  the  national  sovereignty  is  limited  to  the  subjects  and  powers  enumerated 
in  the  Constitution,  and  such  implied  powers  as  are  requisite  to  the  successful 
exercise  of  those  expressly  granted  ;  and  as  no  general  power  to  create  corpora- 
tions is  expressly  given,  the  construction  of  the  court  of  last  resort  upon  these 
questions,  established  at  an  early  day,  is,  that  Congress  can  charter  only  such 
corporations  as  are  fairly  to  be  esteemed  necessary  to  the  successful  accomplish- 
ment of  its  delegated  powers  and  functions.  McCullough  v.  Maryland,  4 
Wheaton,  316;  Ooborne  v.  Bauk  of  United  States,  9  "Wheaton,  733. 


§  17«.         nOW  CORPORATIONS  ARE  CREATED.  57 

plied  from  other  legislative  action;2  or  else,  that  its  existence  is 
fairly  to  be  presumed  from  the  long  continuance  of  its  unques- 
tioned exercise.3 

2.  The  legislature  may  create  corporations  by  general  acts  of 
incorporation,  as  they  are  called,  whereby  a  given  number  of 
persons,  by  forming  an  association  in  a  prescribed  form,  shall  be- 
come possessed  of  corporate  powers,  for  certain  defined  objects 
and  purposes.  This  is  common,  in  many  of  the  states,  as  to  ec- 
clesiastical and  charitable,  or  benevolent  associations,  and  not 
unfrequcntly  as  to  banking,  railway,  and  other  business  corpora- 
tions. And  although  at  one  time  questioned,  it  seems  now 
conceded,  that  the  sovereign  authority  may  grant  to  any  one  the 
power  to  erect  corporations  to  an  indefinite  extent,  upon  the 
maxim:  Qui  facit  per  alium  facit  per  se .  This  power  is  given 
to  the  Chancellor  of  the  University  of  Oxford,4  and  exists  in 
many  other  forms. 

3.  A  corporation  is  denned  by  Lord  Holt,  Ch.  J.,5  as  an  ens 
civile,  a  corpus  polilicum,  a  persona  politico,,  a  collegium,  an 
univcrsitas,  a  jus  habendi  et  agendi.  A  corporation  is  well  de- 
fined, as  to  the  general  sense  of  the  term,  by  Chief  Justice  Mar- 
shall f  as  "  an  artificial  being,  invisible,  intangible,  and  existing 
only  in  contemplation  of  law."  It  is,  in  fact,  the  mere  creature  or 
creation  of  the  law.  Endowed  by  its  charter  with  the  capacity 
of  performing  certain  functions,  and  having  no  rights,  and  pos- 
sessing no  powers,  except  those  conferred  by  the  sovereignty  by 
which  it  was  created. 

4.  It  is  upon  this  ground,  that  it  has  been  declared,  upon  the 
most  unquestionable  basis,  both  of  principle  and  authority,  that 
a  "  corporation  can  have  no  legal  existence  out  of  the  bounda- 
ries of  the  sovereignty  by  which  it  is  created."  7     "  It  exists 

2  Conservators  of  the  Tone  v.  Ash,  10  B.  &  Cr.  349. 

3  Dillingham  v.  Snow,  5  Mass.  547  ;  2  Kent,  Conim.  277  ;  1  Bl.  Coram.  473. 

4  Bl.  Coram.  474. 

6  Anonymous,  3  Salk.  102. 

6  Dart.  College  v.  Woodward,  4  Wheat.  518.  The  same  learned  judge,  in 
another  place,  Providence  Bank  v.  Billings,  4  Pet.  U.  S.  514,  thus  comments 
upon  the  purposes  of  acts  of  incorporation.  "  The  great  object  of  an  incorporation 
is,  to  bestow  the  character  and  properties  of  individuality  on  a  collective  and 
changing  body  of  men." 

7  Taney,  Ch.  J.  in  Bank  of  Augusta  v.  Earle,  13  Pet.  U.  S.  519,  588. 


58  RAILWAYS   AS   CORPORATIONS.  §17  a. 

only  in  contemplation  of  law,  and  by  force  of  the  law  ;  and 
where  that  law  ceases  to  operate,  and  is  no  longer  obligatory,  the 
corporation  can  have  no  existence.  It  must  dwell  in  the  place 
of  its  creation,  and  cannot  migrate  to  another  sovereignty." 
And  the  same  thing,  substantially,  is  repeated  in  another  case 8 
by  Mr.  Justice  Thompson. 

5.  There  seems  to  be  no  question  but  the  corporation  may  act, 
by  its  directors,  agents,  and  servants,  beyond  the  limits  of  the 
sovereignty  by  which  it  was  created,9  but  its  first  meeting,  and 
all  its  subsequent  meetings,  in  order  to  bind  absent  and  dissent- 
ing members,  should,  it  would  seem,  be  held  within  the  limits 
and  jurisdiction  of  the  sovereignty  creating  the  corporation.10 
But  in  a  very  recent  case  in  New  Jersey,  Hilles  v.  Parrish,11  the 
general  rule  is  reaffirmed,  that  a  corporation  can  hold  no  meet- 

8  Runyan  v  [Lessee  of  Coster,  14  Pet.  122,  131.  The  same  doctrine  is  main- 
tained in  other  American  cases,  Miller  i>.  Ewer,  27  Me.  R.  509 ;  Farnum  v. 
Blackstone  Canal  Co.,  1  Sumner,  46  ;  Day  v.  Newark  India  Rubber  Co.,  1 
Blatchf.  C.  C.  628. 

9  McCall  v.  Byram  Manuf.  Co.,  6  Conn.  R.  428.  It  was  held  in  this  case, 
that  the  directors  of  a  manufacturing  corporation  might  legally  hold  a  meeting, 
out  of  the  state,  for  the  purpose  of  making  the  appointment  of  secretary  of  the 
corporation,  and  the  appointment  would  not  be  rendered  invalid  thereby,  or  by 
the  fact  that  the  person  appointed  had  his  permanent  residence  without  the  state. 

10  Miller  v.  Ewer,  27  Me.  R.  509.  The  law  seems  so  entirely  well  settled, 
that  corporations,  created  by  one  sovereignty,  cannot  so  transfer  their  locality 
as  legally  to  exist  and  act  in  their  organic  corporate  capacity  in  another  sover- 
eignty, that  it  appears  very  singular  that  such  multitudes  of  speculative  joint- 
stock  corporations,  deriving  their  charters  from  the  legislature  of  a  state,  should 
attempt  to  transfer  their  entire  local  action  to  another  sovereignty  and  jurisdic- 
tion. For  there  is  no  principle  better  settled  than  that  the  locality  of  a  business 
corporation  is  determined  by  that  of  its  principal  business  office.  And  there  are, 
unquestionably,  hundreds  of  business  corporations  chartered  by  the  legislature 
of  one  state  having  their  principal  and  only  business  office  in  other  states. 
This  is  done  doubtless  by  holding  the  stockholders'  meetings  in  the  states  where 
the  charter  was  obtained,  and  appointing  a  board  of  directors  with  full  powers, 
and  then  carrying  forward  the  business  of  the  company  through  the  agency  of 
the  board  of  directors,  with  a  by-law  for  filling  vacancies  in  the  board  by 
the  action  of  the  directors  themselves.  But  that  seems  scarcely  less  than  an 
evasion.  And  although  it  may  be  held  binding  upon  the  members  of  the  com- 
pany so  long  as  acquiesced  in  by  thSm,  it  might  at  any  time  be  enjoined  by 
proper  proceedings  in  equity. 

11  1  McCarter,  380. 


§176. 


THE   CONSTITUTION   OF   CORPORATIONS. 


59 


ing  and  transact  no  corporate  business,  except  within  the  state 
from  which  they  derive  their  charter.  And  it  was  here  further 
held,  that  a  resolution  of  the  directors,  held  out  of  the  state 
where  the  corporation  was  created,  for  the  purpose  of  transfer- 
ring stock  to  some  of  their  own  number,  was  wholly  inopera- 
tive. But  the  court  declined  to  enjoin  those  holding  under  such 
title  from  voting  at  the .  election  of  corporate  officers,  until  all 
parties  could  be  heard  upon  the  question  of  title. 

6.  But  a  college  of  learning,  established  in  a  particular  place, 
has  no  power  to  establish  a  branch,  for  one  of  its  departments 
or  faculties,  at  a  different  place.  It  was  accordingly  held,  that 
Geneva  College,  at  Geneva,  N.  Y.,  could  not  establish  a  medical 
school  in  the  city  of  New  York.12 


SECTION    III. 


T/ie  Constitution  of  Corporations. 


1.  Definitions  of  the  different  sense  of  the 

term  "  constitution,"  as  applied  to  cor- 
porations. 

2.  How  corporations  may   be   composed  or 

constituted. 
n.  1.   The  question  illustrated  more  in  detail. 

3.  Distinction  of  legislative,   electoral,   and 

administrative  assemblies  not  essential. 

4.  Corporation   can   only  act  by  its  name. 

Subject  discussed. 


5.  Any  deviation  from  the  name  allowed,  if 

the  substance  and  sense  be  preserved. 

6.  Courts   of  equity   will  not   restrain  cor- 

porations from   applying  for  enlarged 
power. 

7.  Change  of  constitution.     Effect  of  change 

of  name. 

8.  Courts  of  equity  will  enjoin  a  new  corpo- 

ration from  assuming  the  name  of  one 
of  established  credit. 


§  17  b.  1.  The  term  "  constitution,"  as  applied  to  corporations, 
is  susceptible  of  being  used  in  very  different  senses.  It  may  im- 
ply nothing  more  than  the  charter  or  formal  grant  of  corporate 
organization  and  powers  by  the  sovereignty,  or  it  may  be  applied 
to  certain  fundamental  principles,  declared  by  the  corporators 
themselves,  as  the  unalterable  basis  of  the  organization  of  the 
body  ;  or,  if  not  wholly  unalterable,  not  to  be  altered,  except  by 
the  adoption  and  concurrence  of  certain  formalities,  not  likely  to 
occur,  except  in  regard  to  changes  of  very  obvious  necessity;  or 
the  term  may  be  used  to  signify  the  members  or  different  bodies 
of  which  the  corporation  is  composed. 

1S  People  v.  Trustees  of  Geneva  College,  5  Wendell,  211. 


60  RAILWAYS   AS   CORPORATIONS.  §  17  b. 

2.  A  corporation  may  be  composed  of  natural  persons,  acting  in 
their  separate  and  individual  capacity  ;  or  it  may  be  composed  of 
different  bodies  of  natural  persons,  acting  in  separate  assemblies  ; 
or  it  may  be  composed  of  separate  and  distinct  corporations.1 

3.  Some  writers  have  distinguished  the  meetings  or  assemblies 
of  aggregate  corporations  into  three  kinds,  —  legislative,  elector- 
al, and  administrative.  But  this  is  a  distinction  with  reference  to 
the  different  officers,  or  duties  of  the  same  assembly,  or  meet- 
ing, and  is  consequently  of  no  practical  importance  to  be  main- 
tained or  discussed.2 

4.  A  corporation  must  be  constituted  by  some  corporate  name, 
and  can  only  act  by  such  name.3  A  corporation  by  prescription 
may  have  several  names,  but  by  charter  it  can  have,  it  is  said, 
but  one  name  for  the  same  purpose  and  at  the  same  time.  For, 
although  it  may  have  a  new  charter  by  a  new  name,  it  thereby 
loses  the  old  name.4 

1  Joint-stock  business  corporations  are,  for  the  most  part,  composed  of  natural 
persons.  But  as  membership  in  such  corporations  grows  out  of  the  ownership 
of  shares,  it  may  exist  in  other  corporations,  who  subscribe  for  or  purchase 
shares ;  or  the  shares  may  be  in  part  owned  by  the  sovereignty,  either  state  or 
national.  Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9 
Wheaton,  904  ;  Bank  of  South  Carolina  v.  Gibbs,  3  McCord.  377.  But  as  said 
by  Mr.  Chief  Justice  Marshall,  in  Bank  of  the  United  States  v.  The  Planters' 
Bank,  supra,  "  As  a  member  of  a  corporation,  a  government  never  exercises 
its  sovereignty.  It  acts  merely  as  a  corporator,  and  exercises  no  other  power 
in  the  management  of  the  affairs  of  the  corporation  than  are  expressly  given 
by  the  incorporating  act." 

A  familiar  instance  of  corporations,  composed  of  different  associations  of 
natural  persons,  forming  component  parts  of  the  corporation,  will  be  found  in 
the  organization  of  municipalities,  1  Kyd.  36.  So  also  the  corporation  may  be 
composed  of  a  denned  number  of  persons  of  a  particular  class.  As  in  the  case 
of  St.  Mary's  Church  in  the  city  of  Philadelphia,  7  S.  &  R.  517. 

And  a  corporation  is  sometimes  constituted  of  several  subordinate  corporations 
combined.  As  in  the  case  of  the  Dean  and  Canons  of  the  English  Cathedrals, 
2  Burn's  Eccl.  Law,  Tit.  Monasteries,  542.  The  same  is  also  true  of  the  cor- 
porations of  the  English  Universities,  which  are  composed  of  the  subordinate 
corporations  of  the  different  Colleges  and  Halls.  1  Kyd.  36.  Some  English  towns 
and  cities  are  composed  of  several  subordinate  corporations.  And  a  freeman  of 
the  city  of  London  must  first  become  a  freeman  of  some  of  the  Trades'  incorpora- 
tions.    Angell  &  Ames,  §  96. 

2  1  Kyd.  399  ;  Angell  &  Ames,  §  98. 

s  College  of  Physicians  v.  Salmon,  3  Salk.  102. 

4  Anonymous,  3  Salk.  102.     But  some  writers  have  said  that  if  the  charter  of 


§17Z>.  THE   CONSTITUTION   OF   CORPORATIONS.  Gl 

5.  But  it  sometimes  becomes  an  important  and  decisive  con- 
sideration, how  far  a  departure  from  the  strict  corporate  name 
can  be  allowed  without  the  violation  or  disregard  of  established 
principles.  It  was  early  decided,5  that  in  contracts  by  or  to  cor- 
porations, it  is  sufficient  if  the  name  be  substantially  preserved. 
It  is  not  requisite  ut  idem  nomen  syllabis  be  preserved,  but  only 
in  re  et  sensu.  The  precise  words  of  the  name  are  not  indispen- 
sable. It  is  sufficient  if  the  substance  and  the  sense  be  preserved. 
And  in  a  case  in  New  Hampshire,  it  was  held  not  essential,  in 
naming  a  corporation,  that  the  same  words  should  be  used  in 
the  same  order,  provided  the  description  was  sufficient  to  identify 
the  body.6  And  this  rule  obtains  generally,  in  all  the  cases  upon 
the  subject,  both*  English  and  American.  If  the  name  used  to 
describe  the  corporation  does  not  describe  any  other  person, 
natural  or  corporate,  and  is  sufficient  to  show  that  the  particu- 
lar corporation  was  intended,  it  will  be  sufficient." 

6.  The  constitutions  and  powers  of  all  corporations  must 
necessarily  depend  upon  the  law  of  the  state  where  the  same  was 
created.  And  in  the  English  courts  of  equity  it  is  not  the  prac- 
tice to  interfere  to  restrain  the  majority  of  the  shareholders  from 
applying  to  parliament  for  enlarged  powers.  And  the  same  rule 
is  there  adopted  as  to  foreign  corporations,  whose  shareholders 

a  corporation  allow  them  to  act  by  different  names  for  the  same  purpose,  there 
is  no  good  reason  why  they  may  not.  1  Kyd.  230.  And  in  Minot  v.  Curtis,  7 
Mass.  441,  it  is  said  a  parish  may  be  known  by  several  corporate  names.  The 
point  is  not  important,  since  few  corporations  make  any  claim  to  an  alias  dictus, 
and  where  that  is  claimed  there  will  commonly  be  no  difficulty  in  determining 
how  far  the  claim  can  be  justified  or  maintained.  There  is  no  pretence  of  the 
capacity  of  a  corporation  to  change  its  own  name  at  will.  Serious  inconvenience 
might  be  expected  to  result  from  any  such  facility  of  change  of  name  being  con- 
ceded to  corporations.  Reg.  v.  Registrar,  10  Q.  B.  839.  But  the  legislature 
may  change  the  name  of  a  corporation,  and  this  will  not  effect  its  rights,  its 
identity  being  shown.     Rosenthal  v.  Madison  P.  R.  Co.,  10  Ind.  R.  358. 

5  Mayor  and  Burgesses  of  Lynne  Regis.  10  Co.  Rep.  11  Jac.  I.  122 . 

8  Newport  Mech.  Co.  v.  Starbird,  10  N.  H.  R.  123. 

7  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232 ;  Tucker  v.  Seaman's  Aid  So- 
ciety, 7  Met.  188;  Attorney-General  v.  Corporation  of  Rye,  7  Taunt.  546; 
Foster  v.  Walter,  Cro.  Eliz.  106  ;  Domestic  &  Foreign  Missionary  Society's 
Appeal,  30  Penn.  St.  R.  425  ;  Button  v.  American  Tract  Society,  23  Vt.  R.  336  ; 
Redfield  on  Wills,  Pt.  1,  §40,  and  cases  cited.' 


62  RAILWAYS   AS   CORPORATIONS.  §  176. 

principally  reside  in  England,  and  where  the  principal  business 
is  transacted  in  that  country.8 

7.  The  English  courts  of  equity  hold  a  very  strict  hand  over 
joint-stock  companies  incorporated  by  act  of  parliament,  both  in 
regard  to  the  exercise  of  their  powers  and  the  application  of  their 
funds.9  Where  the  name  of  a  corporation  is  altered  by  act  of 
the  legislature,  with  a  provision  that  it  shall  not  have  the  effect 
to  prejudice  any  right  or  remedy  in  favor  of  the  company  pre- 
viously existing,  it  was  held  to  save  the  remedy  against  a  surety 
upon  a  bond  for  faithful  service  of  an  employee.10 

8.  An  application  was  made  in  a  somewhat  recent  case,11  for 
an  injunction  against  the  defendant's  adoption  and  use  of  the 
plaintiff's  name,  or  one  so  similar  as  to  lead  the  public  to  sup- 
pose they  were  the  same  institution,  upon  the  ground  that  this 
would  tend  to  deprive  them  of  the  just  benefits  of  the  long  period 
of  conducting  their  business  upon  terms  and  in  a  mode  most  ac- 
ceptable to  the  public.  The  application  was  based  upon  the 
same  grounds  that  have  induced  courts  of  equity  to  interfere  to 
protect  parties  from  the  fraudulent  use  of  established  trade- 
marks, inasmuch  as  it  tends  to  a  double  fraud, —  in  depriving 
the  parties,  first  giving  character  to  such  mark,  of  the  legitimate 
fruits  of  their  industry  ;  and  also  in  that  it  induces  the  public  to 
suppose  they  are  obtaining  the  original  article  of  the  original 
proprietor,  when  in  fact  they  are  not.12  The  court,  Vice-Chan- 
cellor  Stuart,  intimated  no  doubt  of  the  propriety  of  granting 
the  relief,  upon  the  ground  claimed  in  the  bill,  but  denied  the 
injunction  upon  the  ground  that  no  such  case  was  made  out  at 
the  hearing.  But  a  company  cannot  by  user  acquire  an  exclu- 
sive right  to  use,  in  its  title  of  incorporation,  a  term  descriptive 
merely  of  the  locality  where  the  business  is  carried  on  ;  and  the 
court  will  not  restrain  the  use  of  such  general  term  by  a  new 
company,  although  it  appear  that  the  former  company  may  have 
been  prejudiced  by  the  similarity  of  name.13 

8  Bill  v.  Sierra  Nevada  L.  W.  Co.,  6  Jur.  N.  S.  184. 

0  Attorney-General  v.  Great  N.  Railw.,  1  Drew.  &  Sm.  154.  4JNot 

10  Groux  &  C.  Co.  v.  Cooper,  8  C.  B.  N.  S.  800. 

11  The  London  Insurance  v.  The  London  &  Westminster  Insurance  Corpora- 
tion, 9  Jur.  N.  S.  843. 

12  2  Story  Eq.  Jur.  §  951,  et  seq,  in  the  late  edition  of  1866. 

13  Colonial  Life  Ass.  Co.  v.  Home  &  Col.  Life  Ass.  Co.,  10  Jur.  N.  S.  967. 


§18. 


ORGANIZATION   OF   THE   COMPANY. 


63 


♦CHAPTER    IV. 


PROCEEDINGS   UNDER  THE    CHARTER. 


SECTION    I. 


Organization  of  the  Company. 


1.  Conditions  precedent  must  be  performed. 

2.  Stock  must  all  be  subscribed,  ordinarily. 

3.  Charter,  location  of  road,  condition  prece- 

dent. 

4.  Colorable  subscriptions  binding  at  law. 

5.  Conditions  subsequent,  how  enforced. 

6.  Stock  distributed  according  to  charier. 

7.  Commissioners  must  all  act. 


8.  Defect  of  organisation  must  be  plead. 

9.  Question  cannot  be  raised  collaterally. 

10.  Records  of  company,  evidence. 

11.  j\Jembership,  how  maintained. 

12.  By  subscription  and  transfer  of  shares. 

13.  Offers  to  take  shares   not  enforced  in 

equity,  may  be  withdrawn. 


§  18.  1.  To  give  the  corporation  organic  life,  the  mode  pointed 
out  in  the  charter  must  ordinarily  be  strictly  pursued.  Condi- 
tions precedent  must  be  fairly  complied  with.1  Thus,  where  a 
given  amount  of  capital  stock  is  required  to  be  subscribed  or 
paid  in  before  the  corporation  goes  into  operation,  this  is  to  be 
regarded  as  an  indispensable  condition  precedent.2  But  if  the 
charter  is  in  the  alternative,  so  that  the  stock  shall  not  be  less 
than  one  sum  or  greater  than  another,  the  company  may  go  into 
operation  with  the  less  amount  of  stock,  and  subsequently  in- 
crease it  to  the  larger.2 

1  Angell  &  Ames  on  Cor.  ch.  3,  §  95-  112  ;  2  Kent,  Comm.  293  et  seq. 

2  Post,  §  51,  and  cases  cited.  Bend  v.  Susquehanna"  Bridge,  6  liar.  &  Johns. 
128  ;  Gray  v.  Portland  Bank,  3  Mass.  R.  3G4  ;  Minor  v.  The  Mechanics' Bank 
of  Alexandria,  1  Peters,  (U.  S.)  46.  Opinion  of  Story,  J.  And  where  a  cor- 
poration is  formed,  or  attempted  to  be  formed,  under  general  statutes,  the  in- 
choate proceedings  do  not  ripen  into  a  corporation,  until  all  the  requirements  of 
the  statute;  even  the  filing  of  the  articles  in  the  office  of  the  Secretary  of  State, 
are  complied  with.  And  until  this  is  done,  the  subscription  of  any  one  to  the 
articles  is  a  mere  proposition  to  take  the  number  of  shares  specified,  of  the  cap- 
ital stock  of  the  company  thereafter  to  be  formed,  and  not  a  binding  promise  to 
pay.     The  obligation  is  merely  inchoate  and  can  never  become  of  any  force, 

*7 


6-1  PROCEEDINGS  UNDER  THE  CHARTER.  §  18. 

2.  And  where  business  corporations  are  created,  with  a  defi- 
nite capital,  it  is  regarded  as  equivalent  to  an  express  condition 
that  the  whole  stock  shall  be  subscribed  before  the  company  can 
go  into  full  operation  ;  and,  in  the  case  of  banks,  it  must  be 
paid  in  specie,  in  the  absence  of  all  provision  to  the  contrary, 
before  they  can  properly  go  into  operation.3 

*  3.  In  some  cases  it  is  a  condition  of  the  charter,  or  of  the 
subscriptions  to  the  stock,  that  the  track  of  a  railway  shall  touch 
certain  points,  or  that  it  shall  not  approach  within  certain  dis- 
tances of  other  lines  of  travel.  This  class  of  conditions,  so  far 
as  they  can  practically  be  denominated  conditions  precedent, 
must  be  strictly  complied  with,  before  the  company  can  properly 
go  into  operation  so  as  to  make  calls. 

4.  But  it  has  been  held,  that  colorable  subscriptions  to  stock, 
in  order  to  comply  with  the  requisites  of  the  charter,  are  not  to 
be  regarded  as  absolutely  void.  They  are  binding  upon  the 
subscribers  themselves.  And  they  are  binding  upon  the  other 
subscribers  unless,  upon  their  first  discovery,  they  take  steps  to 
stay  the  further  proceedings  of  the  corporation,  which  may  be 

unless  the  corporation  goes  into  effect  in  the  mode  pointed  out  in  the  statute. 
And  until  that  time,  the  subscriber  may  revoke  the  offer,  and  if  the  articles  are 
in  his  possession  or  control,  erase  his  name.     Burt  v.  Farrar,  24  Barb.  518. 

*  King  v.  Elliott,  5  Sm.  &  Mar.  428 ;  Post,  §  51.  But  a  requirement  in  the 
charter  of  a  railway  company,  that  S  1,000  per  mile  shall  be  subscribed,  and  ten 
per  cent  paid  thereon  in  good  faith,  does  not  require  ten  per  cent  to  be  paid  by 
each  subscriber,  in  order  to  the  performance  of  the  condition.  It  is  a  sufficient 
compliance  with  such  requirement,  if  that  proportion  on  the  whole  subscription 
be  paid.  Ogdensb.,  Rome,  &  Clay.  R.  v.  Frost,  21  Barb.  541.  But  under  the 
late  English  Statutes  corporations  are  allowed  to  organize,  and  make  calls  to 
some  extent,  before  all  the  capital  is  subscribed.  Or.  P.  W.  Co.  v.  Brown,  9 
Jur.  N.  S.  578 ;  S.  C.  2  H.  &  C.  G3.  But  in  America  the  rule  that  all  the  stock 
must  be  subscribed  before  the  company  can  go  into  operation  is  strenuously  ad- 
hered to.  Shurtz  v.  The  S.  &  T.  Railw.  Co.,  9  Mich.  2G9.  And  upon  gen- 
eral principles  it  seems  not  to  be  held  indispensable  in  England  that  all  the  stock 
be  subscribed,  either  to  enable  the  corporation  to  go  into  operation,  or  even  to 
borrow  money  on  mortgage.  McDougall  v.  The  Jersey  Imperial  Hotel  Co.,  10 
Jur.  N.  S.  1043.  But  in  America  the  entire  capital  stock  must  be  subscribed 
and  paid  in  money,  and  it  will  not  be  sufficient  to  pay  it  in  the  equivalent  for 
money,  to  the  acceptance  of  the  shareholders  or  directors,  unless  the  charter  or 
general  laws  of  the  State  so  provide.  The  People  v.  The  Troy  House  Co.,  44 
Barb.  G25. 

*8 


§  18.  ORGANIZATION  OF  THE  COMPANY.  G5 

done  in  a  court  of  equity.  If  there  has  been  unreasonable  delay 
in  opposing  the  action  of  the  corporators,  upon  the  faith  of  such 
subscriptions,  or  if  matters  have  progressed  so  far,  before  the 
discovery  of  the  true  character  of  the  subscriptions,  by  the  par- 
ties liable  to  be  injuriously  affected  by  them,  as  to  render  it  diffi- 
cult to  restore  the  parties  to  their  former  rights,  the  corporation 
will  still  be  allowed  to  proceed,  notwithstanding  the  fraud  upon 
the  charter.4 

5.  Conditions  subsequent  in  railway  charters,  by  which  is  to  be 
understood  such  acts  as  they  are  required  to  perform  after  their 
organization,  will  ordinarily  form  the  foundation  of  an  action  at 
law,  in  favor  of  the  party  injured ;  or  they  may  be  specifically 
enforced  in  courts  of  equity,  in  cases  proper  for  their  interference 
in  that  mode  ;  or,  if  the  charter  expressly  so  provide,  proceedings, 
by  way  of  scire  facias,  to  avoid  the  charter  may  be  taken.5 

6.  Where  a  statute  declares  certain  persons  by  name,  and 
such  other  persons,  as  shall  hereafter  become  stockholders,  a  cor- 
poration, *  the  distribution  of  the  stock,  in  the  mode  pointed  out 
in  the  statute,  is  a  condition  precedent  to  the  existence  of  the 
corporation.6 

4  "Walker  v.  Devereaux,  4  Paige,  229.  The  entire  ground  of  chancery 
jurisdiction  in  regard  to  the  conduct  of  commissioners  or  corporations  in  mak- 
ing colorable  subscriptions  of  stock  is  here  very  fully  discussed  by  the  learned 
Chancellor.  And  the  conclusion  arrived  at  seems  the  only  practicable  one, 
that  colorable  subscriptions  or  fraudulent  distribution  of  stock  will  not  de- 
feat the  legality  of  the  organization  of  the  corporation,  unless  the  thing  is  ar- 
rested in  limine.  Johnston  v.  S.  W.  B.  B.  Bank,  3  Strob.  Eq.  263 ;  Selnia 
&  Tenn.  E.  v.  Tipton,  5  Alabama  E.  787;  Hayne  v.  Beauchamp,  5  Sm.  & 
M.  515.  The  decision  of  the  commissioners  is  conclusive  upon  the  company  and 
shareholders  at  law  certainly.  Crocker  v.  Crane,  21  Wendell,  211.  And 
where  the  charter,  or  act  of  association,  names  commissioners  to  take  up  sub- 
scriptions, they  alone  have  jurisdiction  of  the  matter,  and  subscriptions  taken 
up  by  volunteers  are  not  binding  upon  the  subscribers  unless  adopted  by  the 
commissioners.     Shurtz  v.  The  S.  &  T.  E.  E.  Co.,  9  Mich.  E.  269. 

5  2  Kent,  Comm.  305  and  notes. 

6  Crocker  v.  Crane,  21  "Wendell,  211  ;  s.  c.  2  Am.  Eailw.  C.  484.  Where 
the  statute  names  a  large  number  of  persons,  and  enacts  that  they,  or  any  three 
of  them  may  act  as  commissioners,  either  the  whole  number  or  any  three  may 
act  at  the  election  of  the  individuals.  No  particular  form  of  words  is  re- 
quired to  create  the  grant  of  a  corporation.  The  grant  of  power  to  perform 
corporate  acts  implies  the  grant  of  corporate  powers.  Comm.  v.  West  Chester 
Eailw.  Co.,  3  Grant  Cas.  200. 

VOL.  i.  5  *9 


66  PROCEEDINGS  UNDER  THE  CHARTER.  §  18. 

7.  Where  the  charter  of  a  railway  company  appoints  a  certain 
number  of  commissioners,  to  receive  subscriptions  and  distribute 
the  stock,  in  such  manner  as  they  shall  deem  most  conducive  to 
the  interests  of  the  company,  making  no  provision  in  regard  to  a 
quorum,  all  must  be  present,  to  consult,  when  they  distribute  the 
stock,  although  a  majority  may  decide,  this  being  a  judicial  act. 
Receiving  subscriptions  is  a  merely  ministerial  act,  and  may  be 
performed  by  a  number  less  than  a  majority.6 

If  the  organization  of  a  corporation  is  regular  upon  its  face,  and 
the  legislature  have  recognized  it  as  such  subsequent  to  it  having 
gone  into  operation,  it  becomes  ipso  facto  a  legal  corporation.7 

8.  Questions  in  regard  to  the  organization,  or  existence  of  the 
corporation,  can  only  be  raised  ordinarily  upen  an  express  plea, 
either  in  abatement  or  in  bar,  denying  its  existence.8 

9.  But  all  the  cases  concur  in  the  proposition,  that  the  exist- 
ence of  the  corporation,  the  legality  of  its  charter,  and  the  ques- 
tion of  its  forfeiture,  cannot  be  inquired  into,  in  any  collateral 
proceeding,  as  in  a  suit  between  the  company  and  its  debtors, 
or  others,  against  whom  it  has  legal  claims.9 

7  Black  River  &  Utica  Railw.  v.  Barnard,  31  Barb.  258. 

8  Boston  Type  and  Stereotype  Foundry  v.  Spooner,  5  Vt.  R.  93,  and  cases 
cited ;  Railsback  v.  Liberty  &  Abington  Turnp.  Co.,  2  Carter,  656.  But  some 
cases  seem  to  require  such  proof  to  establish  the  contract.  Stoddard  v.  The 
Onondaga  Annual  Conference,  12  Barb.  573  ;  Heaston  v.  Cincinnati  &  F.  W.  R., 
16  Ind.  R.  275.  A  party  who  executes  his  promissory  note  to  a  company  by  its 
corporate  name  is  estopped  to  deny  its  corporate  existence.  East  Pascagoula 
Hotel  Co.  v.  West,  13  La.  Ann.  541.  s.  p.  Black  River  Railw.  v.  Clarke,  25  N. 
Y.  280.  But  in  an  action  by  a  corporation  upon  a  judgment,  the  defendant  is 
estopped  to  plead  that  no  such  corporation  exists,  even  if  he  propose  to  prove 
its  dissolution  after  the  date  of  the  judgment.  He  should  plead  such  matter 
specially.  Perth  Amboy  Steamboat  Co.  v.  Parker,  2  Phila.  67.  But  see  An- 
derson v.  Kerns  Draining  Co.,  14  Ind.  R.  199. 

9  Duke  v.  Cahawba  Nav.  Co.,  16  Alabama  R.  372;  Post,  §  242,  note  6.  But 
in  an  action  against  a  stockholder  for  the  debt  of  the  company  under  the  stat- 
ute, the  existence  and  organization  of  the  company  must  be  proved;  and  judg- 
ment against  the  company  is  not  evidence  against  the  stockholder.  Hudson  v. 
Carman,  20  Law  Rep.  216 ;  s.  c.  41  Me.  R.  84 ;  C.  P.  &  A.  Railw.  v.  City  of 
Erie,  27  Penn.  St.  380.  See  also  Eakright  v.  L.  &  N.  I.  Railw.,  13  Ind.  R.  404. 
The  subscription  to  the  stock  of  a  corporation  estops  the  subscriber  to  deny 
the  corporate  existence,  nor  canthe  subscriber  plead  in  defence  of  such  sub- 
scription that  other  subscribers,  by  means  of  secret  fraudulent  agreements, 
were  promised  shares  upon  terms  different  from  those  specified  in  the  agree- 


§  18.  ORGANIZATION   OF   THE   COMPANY.  67 

10.  The  records  of  the  corporation  are  primd  facie,  but  not 
indispensable  evidence,  of  its  organization  and  subsequent  pro- 
ceedings.10 But  the  authenticity  of  the  books,  as  the  records  of 
the  corporation,  must  be  shown  by  the  testimony  of  the  proper 
officer  entitled  to  their  custody,  or  that  of  some  other  person  cog- 
nizant of  the  fact.11 

ment,  since  such  fraudulent  arrangements  are  of  no  validity,  and  cannot 
avail  the  parties  on  whose  behalf  they  are  made.  Anderson  v.  N.  &  R.  Railw., 
12  Ind.  R.  37G. 

10  Ang.  &  Am.  §  513;  Grays  v.  Lynchb.  &  Salem  T.  Co.,  4  Rand.  578;  Bun- 
combe T.  Co.  v.  McCarson,  1  Dev.  &  Bat.  306  ;  Greenl.  Ev.  §  492  ;  Rex  v.  Mar- 
tin, 2  Camp.  100;  Hudson  v.  Carman,  20  Law  Rep.  216;  s.  c.  41  Me.  R.  84. 
All  that  a  corporation  is  called  upon  to  prove,  to  establish  its  existence  in  a 
litigation  with  individuals  dealing  with  it,  is  its  charter  and  user  under  it.  This 
constitutes  it  a  corporation  de  facto,  and  this  is  sufficient,  in  ordinary  suits, 
between  the  corporation  and  its  debtors.  The  validity  of  its  corporate  exist- 
ence can  only  be  tested  by  proceedings  in  behalf  of  the  people.  Mead  v. 
Keeler,  24  Barb.  20.  Between  the  company  and  strangers,  the  records  of 
the  company  will  ordinarily  be  held  conclusive  against  them  in  regard  to  such 
matters  as  it  is  their  duty  to  perform,  in  the  manner  detailed  in  the  records. 
Zabriskie  v.  C.  C.  &  C.  Railw.,  10  Am.  Railw.  Times,  No.  15.  s.  c.  affirmed,  23 
How.  381.  Heaston  v.  Cincinnati,  &c.  Co.,  16  Ind.  R.  275.  See,  upon  the 
general  question  T)f  proof  and  presumption  of  the  organization  of  corporations, 
Leonardsville  Bank  v.  Willard,  25  N.  Y.  574;  Belfast  and  Angelica  Plank 
Road  Co.  v.  Chamberlain,  32  N.  Y.  651 ;  Buffalo  &  Allegany  Railw.  v.  Cary, 
26  N.  Y.  75.  Where  the  statute  under  which  an  incorporation  is  formed  in 
another  state,  required,  that  before  the  corporation  should  commence  business 
it  should  cause  its  articles  of  association  to  be  published  in  a  prescribed  form,  it 
was  held  that  it  might  be  regarded  as  sufficiently  incorporated  for  the  bringing 
of  an  action  without  the  publication  ;  and  that  the  general  reputation  and 
notoriety  of  the  fact  that  such  corporation  was  doing  business  in  that  capacity, 
coupled  with  the  fact  that  the  contract  sued  upon  was  made  payable  to  them, 
was  sufficient  evidence  of  the  corporate  existence.  Holmes  v.  Gilliland,  41 
Barb.  568.  See  Unity  Ins.  Co.  v.  Cram,  43  N.  H.  R.  636,  where  the  rule  of 
construction  is  somewhat  more  strict. 

There  seems  to  be  no  rule  of  practice  better  settled  than  that  where  the  de- 
fendant, in  a  suit  brought  by  a  corporation,  pleads  the  general  issue,  he  thereby 
concedes  the  right  of  the  plaintiff  to  sue  in  his  corporate  capacity.  Orono  v. 
Wedgeworth,  44  Me.  R.  49.  The  members  of  a  mutual  insurance  company  can- 
not dispute  the  corporate  existence  in  a  suit  upon  thp  premium  notes  in  favor  of 
a  receiver  appointed  to  wind  up  the  concerns  of  the  company.  Hyatt  v.  "Whip- 
ple, 37  Barb.  595.  Misnomer  of  corporations  must  be  plead  in  abatement  or  it 
will  be  regarded  as  waived.     Keech  v.  Bait.  &  Wash.  Railw.,  17  Md.  R.  32. 

11  Highland  Turnp.  Co.  v.  McKean,  10  Johns.  154.  See  Breedlove  v.  M. 
&c.  Railw.  Co.,  12  Ind.  R.  114. 


68  PROCEEDINGS  UNDER  THE  CHARTER.  §  18. 

11.  Questions  sometimes  arise  as  to  what  constitutes  member- 
ship in  a  corporation.  This  has  to  be  determined,  in  most 
aggregate  corporations,  by  the  just  construction  and  fair  import 
of  the  charter  and  by-laws  of  the  body.  The  usage  of  the  corpo- 
ration and  of  other  similar  bodies  will  be  of  controlling  force  in 
determining  such  questions.  But  the  power  of  maintaining,  in 
some  mode,  a  supply  of  members  of  the  body,  is  incident  to  all 
corporations,  as  indispensable  to  its  continued  existence.12 

12.  But  in  joint-stock  business  corporations,  like  banks  and 
railways,  and  other  similar  companies,  membership  is  originally 
constituted  by  subscription  to  the  shares  in  the  capital  stock  ; 
and  it  is  subsequently  continued  by  the  transfer  of  such  shares, 
in  conformity  with  the  charter  and  by-laws  of  the  company,  and 
no  election  by  or  assent  on  the  part  of  the  corporation  is  re- 
quisite, unless  made  so  by  the  charter  or  by-laws. 

13.  Serious  questions  often  arise  in  regard  to  the  allotment 
and  acceptance  of  shares.  Courts  of  equity  have  sometimes  de- 
clined to  interfere  to  carry  into  effect  specifically,  contracts  with 
the  promoters  to  accept  shares  in  the  company  when  it  should 
be  fully  organized.13  But  we  apprehend  the  rule  is  generally 
otherwise,  as  we  have  stated  elsewhere.14  And  one  who  has 
made  the  requisite  deposit  and  made  the  formal  application  to 
the  company  for  an  allotment  of  shares,  is  still  at  liberty  to  with- 
draw the  application  at  any  time  before  it  is  accepted  or  any  al- 
lotment made.15 

12  Hicks  v.  Launceston,  1  Roll.  Ab.  513,  514  ;  s.  c.  8  East,  272  in  n.  See  also 
2  Kent,  Cormn.  294.  It  is  not  competent  for  the  defendant,  in  an  action  in  favor 
of  a  corporation,  to  plead  that  the  company  has  committed  acts  working  a  for- 
feiture of  its  corporate  franchises.  That  can  only  be  determined  by  a  suit  on 
behalf  of  the  public,  brought  expressly  to  try  that  question,  Comm.  v.  Morris, 
1  Phil.  411;  Coil  v.  Pittsburg  Female  College,  40  Penn.  St.  439;  Dyer  v. 
Walker  &  Howard,  Id.  157.  Membership  in  the  corporation  is  not  affected  by 
the  certificate  of  shares  containing  a  promise  to  pay  interest  till  a  certain  time. 
McLaughlin  v.  D.  &  M.  R.  Co.,  8  Mich.  R.  100. 

13  Oriental  I.  St.  Co.  v.  Briggs,  4  L.  Times,  N.  S.  578.  But  this  case  was  af- 
firmed by  the  Lord  Chancellor,  on  the  ground  that  there  was  no  valid  or  com- 
plete contract.     5  L.  Times,  N.  S.  47  7. 

14  Post,  §  34,  pi.  G. 

15  Graham  ex  parte,  7  Jur.  N.  S.  981. 


§19. 


MODIFICATION   AND,  ACCEPTANCE   OF   THE   CHARTER. 


69 


*SECTION    II. 


Acceptance  of  Charter,  or  of  Modification  of  it. 


1.  Neio  or  altered  charter  must  be  formally  \  5.  Matter  of  presumption  and  inference 


accepted. 

2.  Subscription  for  stock  sometimes  sufficient. 

3.  Inoperative  unless  done  as  required. 

4.  Assent  to  beneficial  grant  presumed. 


6.  Organization  or  acceptance  of  charter  may 

be  shown  by  parol. 

7.  Corporators  assenting  are  bound. 

8.  Charter  subject  to  recall  until  accepted. 


§  19.  1.  It  is  requisite  to  the  binding  effect  of  every  legislative 
charter  (or  modification  of  such  charter)  of  a  joint-stock  com- 
pany, that  it  should  be  accepted  by  the  corporators.1  This  ques- 
tion more  commonly  arises,  in  regard  to  the  modification  of  a 
charter,  or  the  granting  of  a  new  charter,  the  company  in  either 
case,  whether  under  the  old  or  the  new  charter,  going  forward 
to  all  appearance  much  the  same  as  before.  In  such  case,  it  has 
usually  been  regarded  as  important  to  show  some  definite  act  of 
at  least  a  majority  of  the  corporation.2 

2.  The  question  of  acceptance  becomes  of  importance  often, 
where  a  partnership,  or  some  of  its  members,  obtain  an  act  of 
incorporation.  But  ordinarily,  in  the  first  instance,  the  assent 
of  the  stockholders,  or  corporators,  is  sufficiently  indicated  by 
the  mere  subscription  to  the  stock. 

3.  Where  a  statute  in  relation  to  a  corporation  required  ac- 
ceptance, in  a  prescribed  form,  and  that  is  not  complied  with, 
the  corporation  can  derive  no  advantage  from  the  act.3 

4.  It  has  been  held,  that  grants  beneficial  to  corporations  may 
be  presumed  to  have  been  accepted  by  them,  the  same  as  in  the 
case  of  natural  persons.4 

1  The  King  v.  Pasmore,  3  T.  R.  200,  240 ;  Ellis  v.  Marshall,  2  Mass.  R.  269  ; 
This  is  a  charter  to  certain  persons  by  name,  for  the  purpose  of  making  a  street, 
and  subjecting  them  to  assessment  for  the  expense,  and  it  was  held  not  to  bind 
a  person  named  in  the  act,  unless  he  assented  to  it. 

2  Wilmot,  J.,  in  Rex  v.  Vice  Ch.  of  Cambridge,  3  Bur.  1647;  Rex  v.  Am- 
ery,  1  T.  R.  575;  Falconer  v.  Campbell,  2  McLean,  195. 

3  Green  v.  Seymour,  3  Sand.  Ch.  285. 

1  Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  344,  by  Parler,  Ch.  J., 
and  Wilde,  J. 

*10 


70  PROCEEDINGS  UNDER  THE  CHARTER.  §  19. 

5.  And  in  the  majority  of  instances,  perhaps,  the  acceptance  is 
*  rather  to  he  inferred  from  the  course  of  conduct  of  the  com- 
pany than  from  any  express  act.5 

6.  It  may  always  be  proved  by  oral  testimony,  as  may  also  the 
organization  of  the  company  ordinarily.6 

7.  In  a  recent  case  in  Ohio,  where  an  amendment  of  the 
charter  of  a  bank  was  passed  by  the  legislature  giving  the  bank 
certain  immunities  and  privileges,  upon  the  assent  of  all  the 
stockholders  in  writing,  filed  with  the  auditor  of  state,  to  become 
personally  responsible  for  the  liability  of  the  company  in  the 
manner  prescribed  in  the  act,  it  was  held,  that  although  all  the 
stockholders  did  not  subscribe  the  required  written  declaration, 
yet  if  the  bank  had  enjoyed  the  benefits  secured  by  the  amend- 
ment, neither  those  stockholders  who  did  subscribe  it,  or  the 
bank  itself,  can  deny  the  acceptance  of  the  amendment,  as 
against  the  claims  of  third  persons.7 

8.  And  where  the  constitution  of  the  state  is  so  altered  as  to 
prohibit  the  grant  of  special  acts  of  incorporation,  it  was  held 
that  such  an  act  granted  before  the  new  constitution  took  effect, 
and  which  had  not  been  accepted  by  the  corporators,  could  not 
be  accepted  thereafter ;  as  the  grant  of  a  charter  to  those  who 
had  not  applied  for  it,  until  it  was  accepted,  remained  a  mere 
offer,  and  might  be  withdrawn  at  the  pleasure  of  the  grantors.8 
But  where  any  amendment  of  the  charter  of  a  corporation  was 
fully  accepted  by  the  shareholders  before  the  new  constitution 
took  effect,  it  cannot  be  affected  by  any  of  the  provisions  there- 
of: and  what  shall  amount  to  such  acceptance  is  matter  of  fact, 
depending  upon  the  construction  of  the  facts  proved.9 

6  Bank  of  U.  S.  v.  Dandridge,  12  Wheat.  64,  opinion  of  Story,  J.,  and 
oases  cited. 

6  Coffin  v.  Collins,  17  Maine  R.  440;  Bank  of  Manchester  v.  Allen,  11  Yt.  R. 
302;  Angell  &  Ames.  Corp.  §81-87;  Dartmouth  College  v.  Woodward,  4 
Wheat.  688  ;  Wilmington  &  Manchester  R.  v.  Saunders,  3  Jones,  126. 

7  Owen  v.  Purdy,  12  Ohio  N.  S.  73.  And  a  legislative  permission  to  a  plank 
road  company  to  mortgage  its  corporate  property  is  an  amendment  which  may 
be  accepted  by  the  vote  of  the  majority.  And  the  same  is  true  of  all  amend- 
ments calculated  merely  to  facilitate  the  attainment  of  the  existing  objects  and 
purposes  of  the  corporation.  Joy  v.  Jackson  &  Michigan  Plank  Road  Co.,  11 
Mich.  R.  155. 

8  State  v.  Dawson,  16  Ind.  R.  40.  9  s.  c.  22  Ind.  Rep.  272. 

*11 


§20. 


ORDINARY   CORPORATE   POWERS. 


71 


SECTION    III. 


Ordinary  powers. — Control  of  majority. 


1 .  Ordinary  franchises  of  railways. 

3.  Majority  control,  unless  restrained. 

4.  Cannot  change  organic  law. 

5.  Except  in  the  prescribed  mode. 

6.  Cannot  accept  amended  charter. 

7.  Or  dissolve  corporation. 

8.  May  obtain  enlarged  powers. 


9.   Courts  of  equity  will  not  restrain  the  use 
of  their  funds  for  that  purpose. 

10.  But  will,  if  to  convert  caned  into  railway. 

1 1 .  Right  to  interfere  lost  by  acquiescence. 

12.  Acquiescence  of  one  plaintiff,  fatal. 

13.  Railway  a  public  trust. 

14.  Suit  maintained  by  rival  interest. 


§20.  1.  The  ordinary  powers  of  a  railway  company  are  the 
same  as  those  pertaining  to  other  joint-stock  aggregate  corpora- 
tions, unless  restricted  by  the  express  provisions  of  their  charter, 
or  by  the  general  laws  of  the  state.  These  are  perpetual  succes- 
sion, the  power  to  contract,  to  sue  and  be  sued  by  the  corporate 
name,  to  hold  land  for  the  purposes  of  the  incorporation,  to  have 
a  common  seal,  and  to  make  its  own  by-laws  or  statutes,  not  in- 
consistent with  the  charter,  or  the  laws  of  the  state.1  And  it 
may  be  proper  to  say,  that  it  is  implied  in  the  grant  of  all  busi- 
ness corporations,  that  they  possess  the  power  to  acquire  and 
convey  such  property,  both  real  and  personal,  as  shall  be  found 
reasonably  necessary  and  convenient,  for  carrying  into  success- 
ful operation  the  purposes  of  their  incorporation.  And  when 
there  is  no  limitation  upon  this  power,  in  the  act  of  incorpora- 
tion, it  can  only  be  limited  by  writ  of  mandamus  or  injunction, 
out  of  chancery,  at  the  suit  of  the  attorney-general,  or  by  some 
other  proceeding  on  the  part  of  the  people.  Until  some  such 
public  interference,  the  title  of  the  corporation  will  be  good. 

2.  The  right  of  the  majority  of  a  joint-stock  company,  whether 
a  copartnership  or  a  corporation,  to  control  the  minority,  is  a 
consideration  of  vital  importance,  and  will  be  more  extensively 
discussed  hereafter.2 

3.  There  can  be  no  doubt  the  general  principle  of  the  right  of 
the  majority  to  control  the  minority,  in  all  the  operations  of  the 

1  Watford,  69  ;  1  Black.  Comm.  475,  476  ;  2  Kent,  Coinm.  277  ;  where  the 
power  of  amotion  of  members  for  just  cause  is  added. 

2  Post,  §  56,  212. 


72  PROCEEDINGS  UNDER  THE  CHARTER.  §  20. 

company,  within  the  legitimate  range  of  its  organic  law,  is  im- 
plied in  the  very  fact  .of  its  creation,  whether  expressly  conferred 
or  not.3 

*  4.  And  perhaps  it  is  equally  implied  in  the  fundamental 
compact,  that  the  majority  have  no  power  to  change  the  organic 
law  of  the  association,  except  in  conformity  to  some  express 
provision  therein  contained. 

5.  This  principle  lies  at  the  foundation  of  all  the  political  or- 
ganizations in  this  country,  which,  in  theory  certainly,  are  not 
liable  to  be  changed  by  the  will  of  the  majority,  except  in  the 
mode  pointed  out  in  the  constitution  of  the  state  or  sovereignty. 
And  corporations  are  not  subject  to  the  ultimate  right  of  revolu- 
tion, which  is  claimed  to  exist  in  the  state,  and  which  may  be 
exercised  by  the  law  of  force,  which  is  a  kind  of  necessity,  to 
which  all  submit,  when  there  is  no  open  way  of  escape.  This 
could  have  no  application  to  a  commercial  company,  whose 
movements  are  as  much  under  the  control  of  the  courts  of  jus- 
tice as  those  of  a  natural  person. 

6.  And  in  this  country  it  has  been  held,  that  the  acceptance 
by  the  majority  of  a  corporation  of  an  amendatory  act,  does  not 
bind  the  minority.4     An  amendment  to  the  charter  of  a  corpora- 

s  Louisville,  Cincinnati,  &  Charleston  Railw.  v.  Letson,  2  Howard  (U.  S.), 
497  ;  s.  c.  15  Curtis,  Cond.  193.  The  very  definition  of  a  corporation,  that  it  is 
an  artificial  being  composed  of  different  members,  and  existing  and  acting  as  an 
abstraction,  and  having  its  habitation  where  its  functions  are  performed,  presup- 
poses that  it  must  act  in  conformity  with  its  fundamental  law,  which  is  according 
to  the  combined  results  of  its  members,  or  the  will  of  the  majority.  But  this 
will  cannot  change  its  fundamental  law  without  changing  the  identity  of  the  ar- 
tificial being,  to  which  we  apply  the  name  of  the  corporation.  See  also  St. 
Mary's  Church,  7  S.  &  R.  517  ;  New  Orleans,  Jackson,  &c.  Railroad  v.  Harris, 
27  Miss.  R.  517  ;  Ex  parte  Rogers,  7  Cowen,  526,  which  holds,  that  if  the  char- 
ter requires  a  certain  number  to  be  present,  in  order  to  the  performance  of  a 
particular  act,  it  is  requisite  that  the  number  remain  till  the  act  is  complete,  and 
if  one  depart  before,  although  wrongfully,  it  will  defeat  the  proceedings. 

4  New  Orleans,  &c.  Railroad  v.  Harris,  27  Miss.  R.  517.  But  this  rule  will 
be  understood  with  some  limitations.  If  it  be  an  amendment  within  the  ordina- 
ry range  of  the  original  charter,  giving  increased  facilities  for  the  accomplish- 
ment of  the  same  objects,  it  may  be  accepted  by  the  majority,  so  as  to  bind  the 
whole  company.  But  if  it  be  a  fundamental  alteration  of  the  constitution  of  the 
company,  it  must  have  either  the  express  or  implied  assent  of  all  the  corporators, 
to  make  it  binding.  Post,  pi.  8  ;  §  56,  pi.  3,  7. 
*12 


§  20.  ORDINARY   CORPORATE   POWERS.  73 

tion,  to  become  binding,  must  either  have  been  applied  for  in  pur- 
suance of  a  vote  of  the  stockholders,  or  else  have  been  accepted 
by  such  one  ;  or  it  must  have  been  acted  under  for  such  a  length 
of  time  as  to  raise  a  reasonable  presumption  of  knowledge  in  the 
shareholders  and  subsequent  acquiescence.5 

7.  And  a  contract  of  a  manufacturing  corporation  to  employ 
the  plaintiff,  a  stockholder,  during  the  time  for  which  the  corpo- 
ration is  established,  that  being  indefinite,  is  not  released  by  a 
majority  of  the  company  voting  to  dissolve  the  corporation  and 
wind  up  its  concerns,  discharging  the  plaintiff  from  his  employ- 
ment, and  transferring  the  property  to  trustees,  to  pay  the  debts 
and  distribute  the  surplus  among  the  stockholders,  and  giving 
notice  to  the  executive  department  of  the  state,  that  they 
claimed  no  further  interest  in  their  act  of  incorporation.0 

*  8.  But  the  English  cases  seem  to  suppose,  that  it  is  incident 
to  every  business  corporation  to  obtain  such  extension  and  en- 
largement of  its  corporate  powers,  as  the  course  of  trade,  and 
enterprise,  and  altered  circumstances,  shall  render  necessary  or 
desirable,  not  altogether  inconsistent  with  its  original  creation.7 

5  Illinois  River  Railway  v.  Zirmner,  20  111.  R.  654  ;  Same  v.  Casey,  ib. 

6  Revere  v.  Boston  Copper  Co.,  15  Pick.  351.  This  case,  although  put  main- 
ly upon  the  ground  of  plaintiff's  rights  being  independent  of  the  law  of  the  asso- 
ciation, yet  incidentally  involves  the  right  of  the  majority  of  the  corporators  to 
change  its  constitutional  law.  See  also  Von  Schmidt  v.  Huntington,  1  Cal.  55, 
and  Kean  v.  Johnson,  1  Stockton,  Ch.  401,  where  it  is  held,  that  where  the 
charter  is  granted  for  a  limited  time,  it  must  continue  in  operation  till  the  term 
expires,  unless,  perhaps,  in  case  of  serious  loss,  or  with  the  consent  of  all  the  cor- 
porators, and  others  having  any  legal  interest  in  the  question.  The  same  rule 
was  recently  declared  in  Louisiana.  Lodge  No.  I.  v.  Lodge  No.  I.,  16  La.  Ann. 
53.  And  it  was  here  considered,  that  a  resolution  passed  by  the  majority 
of  the  members  of  a  corporation  donating  all  the  property  of  the  company 
to  a  new  corporation  of  which  the  members  voting  are  also  members,  and 
the  delivery  of  the  same  to  such  corporation  in  pursunance  of  such  resolution, 
is  void. 

7  Ware  v.  Grand  Junction  Waterworks,  2  Russ.  &  My.  470  ;  (13  Eng.  Ch. 
Rep.  126.)  Lord  Brougham  seems  here  to  suppose,  that  the  right  of  petition  to 
parliament,  for  enlargement  of  powers,  is  an  implied  incident  of  all  business  cor- 
porations, by  which  the  subscribers  are  bound,  unless  some  express  prohibition  is 
inserted  in  their  charter.  But  the  more  common  implication  in  this  country 
certainly  is,  that  the  original  shareholders  are  not  bound  by  any  such  alteration, 
unless  such  power  exists,  in  terms,  in  the  original  charter. 

*13 


74  PROCEEDINGS  UNDER  THE  CHARTER.  §  20. 

0.  Hence  it  was  held  that  a  court  of  equity  will  not,  at  the 
instance  of  a  shareholder,  restrain  a  joint-stock  incorporated 
company,  whose  acts  of  incorporation  prescribe  its  constitution 
and  objects,  from  applying,  in  its  corporate  capacity,  to  parlia- 
ment, and  from  using  its  corporate  seal  and  resources,  to  obtain 
the  sanction  of  the  legislature,  to  the  remodelling  its  constitu- 
tion, or  to  a  material  extension  and  alteration  of  its  objects  and 
powers.7 

10.  In  one  case  where  the  purpose  of  the  company  was  to 
apply  to  parliament  for  leave  to  convert  part  of  its  canal  into  a 
railway,  the  vice-chancellor  granted  the  injunction  against  apply- 
ing any  of  its  existing  funds  to  the  proposed  object.8  This  is  the 
more  common  view  of  the  subject  in  this  country,  and  to  a  great 
extent  in  England.9 

11.  But  this  right  of  the  minority  of  the  shareholders  to  inter- 
fere, by  way  of  injunction,  to  restrain  the  majority  from  obtain- 
ing permission  to  alter  the  constitution  of  the  corporation,  may 
undoubtedly  be  lost  by  acquiescence.10  Thus  where  the  share- 
*  holders  knew  of  the  purpose  of  the  directors  to  apply  the  funds 
of  the  company  to  the  construction  of  part  only  of  the  road,  to 
the  abandonment  of  the  remainder,  and  remained  passive  for 
eighteen  months,  while  the  directors  were  applying  large  sums 
to  the  completion  of  this  part  only,  the  court  refused  to  interfere 
by  injunction.10 

12.  And  if  one  of  the  shareholders,  who  has  acquiesced  in 

8  CunlhTv.  Manchester  &  Bolton  Canal  Co.,  2  Russ.  &  My.  480,  in  note.  But 
it  is  here  stated,  that  a  few  days  afterwards,  one  Maudsley  filed  a  bill  against 
the  same  company  and  for  a  similar  object.  The  cause  was  heard  on  its  merits, 
and  the  suit  dismissed  with  costs.  Any  act  beyond  the  scope  of  the  constitution 
of  the  company  requires  the  consent  of  all  the  members.  Burmester  v.  Norris, 
8  Eng.  L.  &  Eq.  487. 

9  Post,  §§  50,  181,  212. 

10  Graham  v.  Birkenhead,  &c.  Railway,  6  Eng.  L.  &  Eq.  132;  Beman  v. 
Rufford,  Id.  106.  Lord  Cranworth  says:  "  This  court  will  not  allow  any  of  the 
shareholders  to  say,  that  they  are  not  interested  in  preventing  the  law  of  their 
company  from  being  violated."  Ffooks  v.  London  &  S.  W.  R.  19  Eng.  L.  & 
Eq.  7.  But  one  creditor  of  a  corporation  cannot,  by  injunction,  restrain  an- 
other creditor  of  the  same  grade  from  obtaining  prior  payment  by  virtue  of  an 
execution  issued  upon  a  prior  judgment.  Gravenstine's  Appeal,  49  Penn.  St. 
310. 

*14 


§  20.  ORDINARY   CORPORATE   POWERS.  75 

the  diversion  of  the  funds,  be  joined  in  the  suit  with  others  who 
have  not,  no  relief  can  be  afforded.31 

And  there  can  bo  no  doubt  of  the  soundness  of  this  principle, 
although  the  effect  of  its  application  may  be  to  produce  a  funda- 
mental alteration  of  the  constitution  of  a  corporation,  and  thus 
to  enable  them  to  do  what  they  had  no  power  before  to  do.  But 
this  is  only  applying  to  the  case  the  principle  of  implied  consent 
of  all  the  shareholders,  resulting  from  silence,  which  is  all  that 
is  requisite  in  any  case,  to  legalize  the  alteration  of  the  charter 
of  a  private  corporation. 

13.  It  is  said  in  a  late  case  by  an  eminent  equity  judge,  Vice- 
Chancellor  Stuart : 12  "  Although,  generally  speaking  "  —  "  there 
can  be  no  doubt  of  the  soundness  of  the  principle,  that  the  di- 
rectors and  the  majority  of  the  company  may  be  restrained  from 
employing  money,  subscribed  for  one  purpose,  for  another,  how- 
ever advantageous,"  —  "  and  although  this  is  the  law  as  to  joint- 
stock  companies,  unincorporated  and  unconnected  with  public 
duties  or  interests,  it  has  not  been  applied  to  corporate  com- 
panies for  a  public  undertaking,  involving  public  interests  and 
public  duties  under  the  sanction  of  parliament ;  in  such  cases 
the  court  of  chancery  has  permitted  the  use  of  the  corporate  seal, 
and  the  moneys  of  the  company,  to  obtain  the  sanction  of  parlia- 
ment to  purposes  materially  altering  the  interests  of  the  share- 
holders, according  to  the  contract  inter  se.  This  was  done  in  the 
case  of  Stevens  v.  South  Devon  Railway  Company-." 13  The 
learned  judge  therefore  concludes,  that,  although  the  principle 
first  stated  by  him  may  apply  to  the  case  of  public  railway  com- 
panies in  general,  "  it  must  be  taken  to  be  subject  to  many  qual- 
ifications, and  requiring  much  caution  and  consideration  "  in  its 
application. 

*  14.  The  same  learned  judge  further  adds,  upon  the  impor- 
tant subject  of  such  proceeding  being  taken  by  one  in  the  interest 
of  a  rival  company :  "  It  has  been  suggested  that  this  suit  is  con- 
stituted to  serve  the  purposes  of  another  set  of  shareholders.     If 

11  Ffooks  v.  London  &  S.  W.  R.  19  Eng.  L.  &  Eq.  7,  opinion  of  Stuart,  V. 
C.  and  cases  cited. 

12  Ffooks  v.  London  &  S.  W.  R.  supra. 

13  13  Beavan,  48  ;  8.  c.  12  Eng.  L.  &  Eq.  229  ;  s.  c.  9  Hare,  313. 

*  15 


76  PROCEEDINGS  UNDER  THE  CHARTER.  §  20. 

it  had  been  established  that  the  real  object  of  seeking  this  injunc- 
tion had  been  to  serve  the  interests  of  a  rival  company,  I  should 
have  considered  that  a  circumstance  of  great  importance  in  de- 
termining the  rights  of  the  plaintiffs  to  any  relief.  No  doubt  it 
has  been  held  in  several  cases,  that  the  mere  fact  that  the  plain- 
tiffs are  shareholders  in  a  rival  company  is  no  reason  for  the 
court  in  a  proper  case  refusing  its  aid,  to  prevent  the  violation 
of  contracts.  But  when  the  fact  is  established,  that,  under  the 
pretence  of  serving  the  interest  of  one  company,  the  shareholders 
in  a  rival  company,  by  purchasing  shares  for  the  purpose  of  liti- 
gation, can  make  this  court  the  instrument  of  defeating  or  injur- 
ing the  company  into  which  they  so  intrude  themselves,  in  order 
to  raise  questions  and  disputes  on  matters  as  to  which  all  the 
other  members  of  the  company  may  be  agreed,  I  cannot  consider 
that  in  such  a  case  it  is  the  province  of  this  court  ordinarily  to 
interfere.  In  questions  on  the  law  of  contracts,  where  there  is  a 
discretionary  jurisdiction  in  this  court,  circumstances  affecting 
the  condition  of  the  contracting  parties,  and  the  origin  and  situ- 
ation of  their  rights  in  relation  to  the  subject-matter  of  the  con- 
tract, deserve  great  consideration. 

15.  But  in  a  recent  English  case14  it  was  determined  by  Vice- 
Chancellor  Wood,  that  the  court  will  not,  upon  the  application 
of  the  minority  of  the  members  of  a  corporation,  interfere  with 
a  resolution  of  the  company  voluntarily  to  wind  up  its  concerns, 
unless  the  resolution  was  obtained  by  fraud,  or  by  overbearing 
conduct,  or  by  improper  influences. 

14  Re  The  Imperial  Mercantile  Credit  Association,  12  Jur.  N.  S.  736. 


§  21.  MEETINGS   OF   COMPANY.  77 

SECTION    IV. 
Meetings  of  Company. 

1 .  Meetings,  special  and  general.  j  6.   Company  acts  by  meetings,  by  directors,  by 


2.  Special,  must  be  notified  as  required. 

3.  Special  and  important  matters,  named  in 

notice. 

4.  Notice  of  general  meetings  need  not  name 

business. 

5.  Adjourned  meeting,  still  the  same. 


agents. 

7.  Courts  presume  meetings  held  at  proper 

place. 

8.  Every  shareholder  may  vote,  but  not  by 

proxy. 


§  21.  1.  By  the  English  statutes  meetings  of  railway  com- 
panies are  distinguished  as  "  ordinary  "  and  "  extraordinary." 
That  distinction,  in  this  country,  is  expressed  by  the  term,  gen- 
eral and  special.  Ordinary  meetings  are  the  annual  and  semi-an- 
nual meetings  of  the  company,  and  such  others  as  are  held  at 
stated  times  and  for  defined  objects,  according  to  the  provisions 
of  the  charter  and  by-laws  ;  and  extraordinary  meetings  are  such 
as  are  held  by  special  call  of  the  directors,  or  other  officer,  whose 
duty  it  is  made  *  to  call  meetings  of  the  company,  in  certain 
contingencies  usually  defined  by  the  statutes.1 

2.  Notice  of  special  meetings  must  be  issued  in  conformity 
to  the  charter  and  statutes  of  the  corporation,  and,  where  no 
special  provision  exists,  must  be  given  personally  to  every  mem- 
ber.2 

8.  Notice  of  special  meetings  should  ordinarily  specify  the 
general  purpose  and  object  of  the  call.  But  it  is  said  this  is  not 
indispensable,  when  it  is  for  the  transaction  of  ordinary  business, 
and  that  giving  security  for  the  debt  of  a  bank,  by  mortgage  of 
its  real  estate,  is  of  this  character.3     But  where  the  business  is 

1  8  &  9  Vict.  c.  16,  §  66. 

2  Wiggin  v.  Freewill  Baptist  Society,  8  Met.  301.  This  view  seems  to  be 
countenanced  by  Lord  Kenyan,  in  Rex  v.  Faversharn,  8  T.  R.  352  ;  Rex  v.  May, 
5  Burrow,  2681  ;  The  King  v.  Langhorn,  4  Ad.  &  Ellis,  538.  See,  also,  cases 
cited  in  the  argument  of  this  case.  But  all  the  cases  agree,  that  if  the  members 
attend  even  without  notice,  it  is  sufficient.  The  King  v.  Theodorick,  8  East,  5-13, 
A  meeting  may  be  general  for  most  purposes,  and  also  special  for  a  particular 
purpose  ;  Cutbill  v.  Kingdom,  1  Exch.  494. 

3  Savings  Bank  v.  Davis,  8  Conn.  R.  191. 

*16 


78  PROCEEDINGS  UNDER  THE  CHARTER.  §  21. 

unusual  and  important,  as  the  election  or  amotion  of  an  officer, 
the  making  of  by-laws,  or  other  matter  affecting  the  vital  in- 
terests and  fundamental  operations  of  the  corporation,  and  on 
a  day  not  appointed  for  the  transaction  of  business  of  this 
character,  or  of  all  business  of  the  corporation,  the  notice  must 
state  the  business,  or  the  action  upon  it  will  be  held  illegal  and 
void.4 

4.  But,  as  a  general  rule,  if  may  be  safely  affirmed,  perhaps, 
that  in  regard  to  general  meetings  of  the  company,  which  are 
for  the  transaction  of  all  business,  no  notice  of  the  particular 
business  to  be  done  is  necessary.5 

And  all  the  members  of  the  corporation  are  presumed  to  have 
notice  of  their  stated  meetings  and  are  bound  by  the  proceedings 
at  such  meetings  ;  but  there  is  no  presumption  that  they  know 
what  is  done  at  such  meetings,  so  as  to  affect  them  with  notice 
of  anything  done  there  contemplating  future  action  at  any  other 
time  than  the  stated  meetings.6 

5.  The  adjournment  of  a  general  meeting  is  not  a  special 
meeting,  but  the  mere  continuance  of  the  general  meeting,  and 
requires  no  notice  of  the  business  to  be  transacted.5 

But  if  the  adjourned  meeting  be  for  the  transaction  of  any 
other  business  than  the  mere  completion  of  the  unfinished  busi- 
ness of  the  stated  or  special  meeting,  as  the  case  may  be ;  and 
more  especially,  where  the  business  is  of  a  character  which  could 

4  Rex  v.  Doncaster,  2  Burrow,  738  ;  Angell  &  Ames,  §  488-496.  In  the 
ease  of  Zabriskie  t>.  C.  C.  &  C.  Railw.,  before  the  District  Court  for  the  North- 
ern District  of  Ohio,  10  Am.  Railw.  Times,  No.  15,  s.  c.  affirmed  23  How.  (U. 
S.)  381  ;  this  subject  is  discussed  by  Mr.  Justice  McLean,  and  he  concludes, 
that  where  the  question  to  be  determined  by  the  company  was  the  guaranty  of 
the  bonds  of  a  connecting  railway  to  a  large  amount,  under  the  statute  of  the 
state,  which  required  the  consent  of  a  meeting  of  the  shareholders,  in  which  two 
thirds  of  the  capital  stock  should  be  represented,  it  was  indispensable  that  the 
call  for  the  meeting  should  state  the  business  to  be  transacted,  and  should  be 
given  long  enough  before  the  time  of  the  meeting  to  enable  the  remotest  share- 
holders in  the  country  to  obtain  notice  and  be  able  to  attend,  or  communicate  with 
their  agents,  or  proxies,  and  also  to  enable  the  resident  agents  of  foreign  share- 
holders to  communicate  with  the  owners.  This  seems  but  a  just  and  reasonable 
limitation  upon  the  power  of  corporations,  in  regard  to  special  meetings. 

6  Warner  v.  Mower,  11  Vt.  R.  385  ;  VvTills  v.  Murray,  4  Exch.  843. 

0  The  People  v.  Batchelor,  22  N.  Y.  Court  of  Appeals,  128. 


§  21.  MEETINGS   OF   COMPANY.  79 

not  have  been  legally  transacted  at  the  former  meeting,  it  will 
not  afford  any  warrant  for  its  legality,  that  it  is  done  at  an  ad- 
journed meeting  from  one  legally  constituted  originally.7  But 
the  publicity  and  general  notoriety  of  a  transaction  may  be  suffi- 
cient ground  for  presuming  knowledge  of  the  appointment  of  one 
to  a  corporate  office,  even  to  the  extent  of  subjecting  such  corpo- 
rator to  a  penalty  for  non-acceptance.8 

6.  By  the  English  statutes,  railways  may  act  in  either  of  three 
modes :  First,  By  the  general  assembly  of  the  shareholders, 
which,  as  between  them  and  the  directors  and  other  agents'  of 
the  company,  has  supreme  control  of  its  affairs :  Second,  By  its 
directors  :  Third,  By  its  duly  constituted  agents.9  The  same  gen- 
eral principle  is  applicable  in  this  country,  and  at  common  law. 

7.  And  where  the  by-laws  require  the  meetings  of  the  com- 
pany *  to  be  held  at  a  particular  place,  as  the  counting-house  of 
the  company,  and  the  record,  or  evidence,  does  not  show  that 
the  meetings  were  held  at  a  different  place,  it  will  be  presumed 
they  were  held  at. the  place  designated.10 

8.  Every  shareholder  is,  ordinarily,  entitled  to  participate  in 
the  meetings  of  members  of  the  corporation  duly  called,  and  to 
vote  upon  all  his  shares,  according  to  the  mode  prescribed  in  the 
charter  and  by-laws  of  the  company,  and  in  conformity  with  the 
general  laws  of  the  state.  But  it  seems  not  well  settled  whether 
a  by-law  of  the  corporation  will  bo  sufficient  to  entitle  the  mem- 
bers to  vote  by  proxy,  and  whether  some  legislative  sanction  is 
not  requisite  to  that  effect.11  But  where  the  charter  provided  that 
"  each  person  being  present  at  an  election  shall  be  entitled  to 
vote,"  it  was  held  to  mean  actual  presence,  and  votes  by  proxy 
were  properly  excluded.12 

7  People  v.  Batchelor,  22  N.  Y.  R.  128;  Scadding  v.  Lorant,  5  Eng.  L.  & 
Eq.  16.     See  Smith  v.  Law,  21  N.  Y.  Court  of  Appeals,  296. 

8  City  of  London  v.  Vanacre,  5  Mod.  438. 

9  Walford  on  Railways,  70. 

10  MeDaniels  v.  Flower  Brook  Man.  Co.,  22  Vt.  R.  274. 

11  State  v.  Tudor,  5  Day,  329 ;  where,  in  mere  business  corporations,  it  was 
considered  that  a  by-law  was  sufficient  to  give  the  power  tp  vote  by  proxy.  But 
in  Taylor  v.  Griswold,  2  Green,  222,  the  contrary  opinion  is  maintained.  See 
also,  2  Kent,  Comm.  294.  There  seems  no  question  that  in  public,  and  elee- 
mosynary corporations  the  members  must  attend  in  person. 

1S  Broom  v.  Comm,  2  Phila.  R.  156. 

*17 


80  PROCEEDINGS  UNDER  THE  CHARTER.  §  22. 

SECTION    V. 
Election  of  Directors. 

1 .  Should  be  at  general  meeting,  or  upon  spe-  I  3.   Company  bound  by  act.  of  directors,  de 

cial  notice.  facto. 

2.  Shareholders  may  restrain  their  authority.  |  4.  Act  of  officer  de  facto,  binds  third  persons. 

§  22.  1.  The  election  of  directors  is  regarded  as  more  impor- 
tant to  the  interests  of  the  company  than  most  other  business, 
inasmuch  as,  when  duly  elected,  they  hold  office  for  a  consider- 
able term,  and  have  all  the  powers  of  the  corporation  in  regard 
to  the  transaction  of  its  ordinary  business,  unless  specially  re- 
strained. They  should,  therefore,  be  elected  at  the  regular  meet- 
ings of  the  company,  and  even  vacancies  should  not  properly 
be  filled  at  special  meetings,  unless  special  notice  of  that  partic- 
ular business  had  been  given  according  to  the  laws  of  the  com- 
pany, which  include  its  charter  and  statutes,  and  the  general 
laws  of  the  state  applicable  to  the  subject. 

2.  The  shareholders  may,  in  a  proper  assembly,  pass  statutes, 
general  or  special,  which  shall  control  the  directors,  as  between 
them  and  the  company.1     Where  the  by-laws  of  the  company 

1  But  where  the  charter  vests  the  control  of  the  concerns  of  the  company  in 
a  select  board  or  body,  the  shareholders  at  large  have  no  right  to  interfere  with 
the  doings  of  these,  their  charter  agents.  Commonwealth  v.  Trustees  of  St.  Ma- 
ry's Church,  6  Serg.  &  R.  508 ;  Dana  v.  Bank  of  the  United  States,  5  Watts  & 
Serg.  223,  247  ;  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  27.  And  courts  are 
always  reluctant  to  interfere  with  the  conduct  of  directors  of  a  corporation,  even 
at  the  instance  of  a  majority  of  the  shareholders,  and  ordinarily  will  not,  when 
such  directors  have  acted  in  good  faith.  State  v.  The  Bank  of  Louisiana,  6 
La.  R.  745. 

But  in  Scott  v.  Eagle  Fire  Co.,  7  Paige,  198,  it  was  held,  that  the  directors 
of  a  joint-stock  corporation  may  be  compelled  to  divide  the  actual  surplus  profits 
of  the  company  among  its  stockholders  from  time  to  time,  if  they  neglect  or  re- 
fuse to  do  so,  without  any  reasonable  cause.  But  if  they  abuse  their  power  to 
make  dividends  of  surplus  profits,  by  dividing  the  unearned  premiums  received 
by  them,  without  leaving  a  sufficient  fund,  exclusive  of  the  capital  stock,  to  sat- 
isfy the  probable  losses  upon  risks  assumed  by  the  company,  it  seems  they  will 
be  personally  liable  to  such  creditors  of  the  company,  if,  in  consequence  of  ex- 
traordinary losses,  the  company  should  become  insolvent  so  as  to  be  unable  to 
pay  its  debts. 


§  22.  ELECTION   OF  DIRECTORS.  81 

*  require  notice  of  the  meeting  for  electing  directors,  but  do  not 
specify  the  time  or  mode  of  such  notice,  it  must  be  given  accord- 
ing to  the  requirements  of  the  general  statutes  of  the  state  upon 
the  subject.2 

3.  But  the  company  cannot  object  that  its  directors,  who  have 
acted  as  such,  were  not  elected  at  a  meeting  properly  notified.3 
Nor  can  the  validity  of  the  acts  of  the  directors  be  collaterally 
called  in  question  on  the  ground  of  irregularity  in  the  notice  of 
the  meeting  at  which  they  were  elected.4  Where  the  charter 
fixes  the  number  of  directors,  and  vacancies  occur,  the  act  of 
the  board  is  not  thereby  invalidated,  provided  a  quorum  still 
remains.5 

8  Matter  of  Long  Island  Railroad,  19  Wend.  37  ;  s.  c.  2  Am.  Railw.  C.  453. 

3  Sampson  v.  Bowdoinham  Steam  Mill  Co.,  36  Maine,  R.  78.  Where  persons 
have  acted  as  directors  of  a  railway  company,  the  court  will  not  summarily  in- 
quire into  the  validity  of  their  appointment.  Tindal,  C.  J.,  said  :  "  If  the  share- 
holders allow  parties  to  act  as  directors,  it  may  be  they  have  no  right  to  turn 
round  in  a  court  of  justice  and  say,  that  such  parties  were  not  properly  elect- 
ed." The  Thames  Haven  Dock  &  R.  Co.  v.  Hall,  5  Man.  &  Gr.  274  -  286.  In 
a  late  case,  Port  of  London  Assurance  Company's  case,  35  Eng.  L.  &  Eq.  1 78, 
one  registered  insurance  company  agreed  to  sell  its  business  to  another  regis- 
tered insurance  company,  and  a  deed  of  assignment  was  accordingly  executed, 
whereby  the  latter  company  covenanted  to  indemnify  the  former  against  all 
claims.  After  the  business  had  been  carried  on  for  some  time  by  the  purchasing 
company,  that  company  failed,  and  both  companies  were  wound  up  under  the 
Winding-up  Acts.  On  the  official  manager  of  the  selling  company  tendering  a 
proof  against  the  purchasing  company,  in  respect  of  claims  satisfied  by  the  sell- 
ing company,  one  part  of  the  deed  of  assignment  was  produced  having  affixed 
to  it  the  seal  of  the  purchasing  company,  but  another  part,  alleged  to  have  been 
executed  by  the  selling  company,  was  not  forthcoming. 

Held,  first,  that  after  what  had  taken  place,  it  was  unnecessary  to  determine 
whether  the  selling  company  had  executed  the  purchase-deed,  or  whether  its 
directors  had  exceeded  their  powers  in  making  the  sale. 

Secondly,  that  where  a  purchaser  has  enjoyed  the  subject-matter  of  a  con- 
tract, every  presumption  must  be  made  in  favor  of  its  validity. 

Thirdly,  that  if  all  the  proceedings  on  the  part  of  the  directors  of  the  pur- 
chasing company,  with  reference  to  the  purchase,  had  not  been  in  strict  accord- 
ance with  their  own  deed  of  settlement,  still,  if  the  contract  with  the  other  com- 
pany was  the  means  of  the  purchasing  company  coming  into  existence,  they 
could  not  act  in  contravention  of  that  contract. 

4  Chamberlain  v.  Painesville  &  Hudson  Railw.  Co.,  15  Ohio  N.  S.  225. 

6  Walford  on  Railw.  71,  72 ;  Thames  Haven  R.  v.  Rose,  4  M.  &  G.  552. 
VOL,  i.  6  *18 


82 


PROCEEDINGS  UNDER  THE  CHARTER. 


§23. 


4.  An  election  of  directors  will  not  be  set  aside,  because  tbe 
inspectors  of  the  election  were  not  sworn  as  required  by  the 
statute.  This  statute  is  merely  directory,  and,  so  far  as  third 
persons  are  concerned,  it  is  sufficient  that  the  inspectors  were 
elected  and  entered  upon  the  duties  of  the  office,  and  became 
officers  de  facto.6 

*SECTION    VI. 
Meetings  of  Directors. 


1 .  All  should  be  notified  to  attend. 

2.  Adjourned  meeting  still  the  same. 

3.  Board  not  required  to  be  kept  full. 

4.  Usurpations  tried  by  shareholders  or  courts. 


5.  Usage  will  often  excuse  irregularities. 

6.  Decisions  of  majority  valid. 

n.  8.  Records  of  proceedings,  evidence. 


§  23.  1.  As  a  general  rule,  where  corporate  powers  are  vested 
in  certain  members,  whether  the  whole  body  of  the  shareholders, 
the  directors,  or  a  committee,  and  the  general  laws  of  the  state, 
the  charter  of  the  company,  or  the  corporate  statutes,  contain  no 
directions  in  regard  to  assembling  the  body,  it  is  requisite  to 
give  due  legal  notice  to  each  member.  Accordingly,  when  by 
the  rules  of  a  friendly  society  the  power  of  electing  officers  was 
vested  in  a  committee  of  eleven,  at  a  meeting  of  the  committee, 
where  ten  of  the  members  were  present,  the  eleventh  not  having 
received  notice,  and  the  defendant  was  removed  from  the  office 
of  treasurer,  and  the  plaintiff  appointed  in  his  stead  by  a  major- 
ity of  votes,  it  was  held  that  the  election  was  void,  although  the 
absent  committee-man  had,  for  a  considerable  period,  absented 
himself  from  the  meetings,  and  intimated  an  intention  not  to 
attend  any  more,  and  although  the  defendant  himself  had  de- 
manded a  poll  at  the  election,  and  was  now  objecting  to  its 
validity.1 

6  Matter  of  Mohawk  &  Hudson  R.,  19  Wend.  135  ;  s.'c.  2  Am.  Eailw.  C.  460. 

1  Roberts  v.  Price,  4  C.  B.  231.  In  the  com-se  of  the  argument,  Cresstcell,  J. 
referred  to  The  King  v.  Langhorn,  4  Ad.  &  Ellis,  538,  and  in  giving  his  opinion 
said  :  "  This  case  seems  to  me  directly  applicable."  In  a  late  case  in  the  House 
of  Lords,  Smyth  v.  Darley,  2  H.  L.  Cases,  789,  803,  it  is  said  :  "  The  election  being 
by  a  definite  body,  on  a  day,  of  which,  till  summons,  the  electors  had  no  notice, 
they  were  all  entitled  to  be  specially  summoned  ;  and  if  there  were  any  omission 
*19 


§  23.  MEETINGS   OF  DIRECTORS.  83 

■ 

2.  But  an  adjourned  general  meeting  of  directors,  which  is 
provided  for  by  the  general  regulations  of  the  board,  and  is  for 
the  transaction  of  the  general  business  of  the  company,  requires 
no  special  notice  of  either  time  or  place,  or  of  the  business  to  be 
transacted.2 

*  3.  But  where  the  charter  of  a  railway  provides  that  its  busi- 
ness shall  be  carried  on  under  the  management  of  twelve  direc- 
tors, to  be  elected  in  a  particular  mode,  pointed  out,  and  that 
where  vacancies  shall  occur  it  shall  be  lawful  for  the  remaining 
directors  to  fill  them,  it  was  held  that  this  provision  did  not 
require  that  the  board  should  be  always  full ;  but  was  merely 
directory,  as  to  tho  mode  of  filling  vacancies.3 

4.  Where  it  is  complained  that  the  existing  board  of  directors 
have  usurped  their  places  in  violation  of  the  wishes  of  the  ma- 
jority of  the  shareholders,  the  question  should  be  referred  to  a 
meeting  of  such  shareholders,4  or  it  may  be  tried  upon  a  quo 
warranto? 

5.  But  in  practice,  in  this  country,  it  is  believed  that  most  of 
the  routine  business  of  railway  and  other  joint-stock  commercial 
companies  is  transacted  through  the  agency  of  sub-committees 
of  the  board  of  directors,  and  that,  where  the  voice  of  the  board 
is  taken,  it  is  more  commonly  done  without  any  formal  assembly 
of  the  board.  And  long-established  usage  as  to  particular  com- 
panies, in  regard  to  the  mode  of  conducting  an  election,  has 
been  held  of  binding  force  in  regard  to  such  company.6     And 

to  summon  any  of  them,  unless  they  all  happened  to  be  present,  or  unless  those 
not  summoned  were  beyond  summoning  distance,  as,  for  instance, 'abroad,  there 
could  not  be  a  good  electoral  assembly ;  and  even  an  unanimous  election  by 
those  who  did  attend,  would  be  void."  Post,  §  211  ;  Great  Western  R.  v.  Rush- 
out,  10  Eng.  L.  &  Eq.  72. 

2  Ante,  §  21.  Wills  v.  Murray,  4  Exch.  843.  But  see  Reg.  v.  Grimshaw,  10 
Q.  B.  747. 

3  Thames  Haven  Dock  and  Railway  Co.  v.  Rose,  4  Man.  &  Gr.  552 ;  ante, 
§  21  ;  Wills  v.  Murray,  4  Exch.  843. 

4  Post,  §211.  &  Post,  §204. 

6  Attorney-General  v.  Davy,  cited  1  Vesey,  sen.  419.  It  would  savor  of  bad 
faith  to  allow  the  business  of  the  company  to  be  transacted  in  a  particular  mode, 
and  then  t©  attempt  to  repudiate  the  acts  of  their  agents,  because  the  transac- 
tion proved  disadvantageous,  when  they  were  in  a  condition  to  take  the  benefit 
of  it  if  it  proved  successful. 

*20 


84  PROCEEDINGS  UNDER  THE  CHARTER.  §  23. 

the  same  course  of  reasoning  might  induce  courts  to  sanction  a 
practice,  which  had  become  universal  from  its  great  convenience, 
although  not  strictly  in  accordance  with  the  principles  of  the 
decided  cases  upon  analogous  subjects,  or  the  results  of  a  priori 
reasoning. 

6.  The  decision  of  a  majority  of  the  board  of  directors  is 
usually  regarded  as  binding  upon  the  company ;  and  the  assem- 
bling of  a  majority  will  be  treated  as  a  legal  quorum  for  the 
transaction  of  business,  unless  the  charter  or  by-laws  contain 
some  specific  provision  upon  the  subject  ;7  and  notice  to  the  ab- 
sent *  directors  will  be  presumed  unless  the  contrary  appears. 
The  general  rule  upon  this  subject  is,  that  the  act  of  a  majority 
of  a  body  of  public  officers  is  binding ;  but  that  if  they  be  of 
private  appointment,  all  must  act,  and,  in  general,  all  must  con- 
cur, unless  there  is  some  provision  to  accept  the  decision  of  a 
majority.  In  this  respect,  railway  directors  come  under  the 
former  head  certainly.  The  proper  distinction  upon  the  general 
subject  seems  to  be,  that  where  the  matter  is  of  public  concern, 
and  of  an  executive  or  ministerial  character,  the  act  of  the  ma- 
jority of  the  board  will  suffice,  although  the  others  are  not  con- 
sulted. But  where  the  function  is  judicial,  involving  a  deter- 
mination of  some  definite  question,  the  whole  body  must  be 
assembled  and  act  together.  If  the  matter  is  of  public  concern, 
the  decision  of  a  majority  will  bind  ;  but  in  private  concerns,  as 
arbitrations,  all  must  concur.8 

7  Cram  v.  Bangor  House,  3  Fairfield,  354 ;  Sargent  v.  Webster,  13  Met.  497  ; 
2  Kent,  Comm.  293  and  notes ;  The  King  v.  Whitaker,  9  B.  &  C.  648  ;  Com- 
monwealth v.  Canal  Commissioners,  9  Watts,  466  ;  Ex  parte  Willcocks,  7  Cowen, 
402  ;  Field  v.  Field,  9  Wend.  394,  403,  where  it  is  held,  that  in  regard  to  the 
body  of  the  stockholders,  any  number  who  attend  is  a  quorum  for  doing  busi- 
ness, if  the  others  be  properly  summoned.  But  as  to  the  directors,  it  is  requi- 
site that  a  majority  attend.  2  Kent,  Comm.  293  ;  Cahill  v.  Kalamazoo  Ins.  Co., 
2  Doug.  (Mich.)  R.  124;  Holcomb  v.  N.  H.  D.  B.  Co.,  1  Stockton,  Ch. 
457. 

8  Green  v.  Miller,  6  Johns.  39  ;  The  King  v.  Great  Marlow,  2  East,  244 ; 
Battye  v.  Gresley,  8  East,  319  ;  Rex  v.  Coin  St.  Aldwins,  Burr.  Settl.  Cas.  136  ; 
The  King  v.  Winwick,  8  T.  R.  454.  But  it  has  never  been  held  that  the  entire 
board  of  directors  must  assemble ;  it  is  enough  if  all  be  summoned,  and  a  major- 
ity attend.  See  note  7.  Edgerly  v.  Emerson,  3  Foster,  555.  #If  the  doings  of 
directors  are  not  recorded,  they  may  be  proved  by  parol.     lb.     The  president 

*21 


§24. 


QUALIFICATION   OF   DIRECTORS. 


85 


7.  But  where  the  authority  of  a  quorum  of  directors  is  re- 
quired for  the  execution  of  a  bond,  it  must  be  given  at  a  formal 
meeting,  whereat  the  members  of  the  quorum  are  all  present  at 
once.9 

*SECTION    VII. 
Qualification  of  Directors. 


1 .  One  cannot  be  a  contractor  and  director. 

2.  May  be  their  banker  and  director. 

3.  May  be  director  by  virtue  of  stock  mort- 


4.  Bankruptcy  or  absence  will  not  vacate 

office. 

5.  Company  compelled  to  Jill  vacancies  in 

board. 


§24.  1.  By  the  Companies'  Clauses  Consolidation  Act,1  it  is 
provided,  that  no  person  interested  in  any  contract  with  the  com- 
pany shall  be  a  director,  and  no  director  shall  be  capable  of 
being  interested  in  any  contract  with  the  company ;  and  if  any 
director,  subsequent  to  his  election,  shall  be  concerned  in  any 
such  contract,  the  office  of  director  shall  become  vacant,  and  he 
shall  cease  to  act  as  such.  Under  this  statute  it  was  held,  that, 
if  a  director  enters  into  a  contract  with  the  company,  the  con- 
tract is  not  thereby  rendered  void,  but  the  office  of  director  is 
vacated.2 

has  a  right  to  vote  upon  all  questions  to  be  determined  by  the  president  and  di- 
rectors.    McCullough  v.  Annapolis  &  Elk  Ridge  R.  4  Gill,  58. 

The  records  of  the  clerk  of  a  railway  company,  of  the  proceedings  of  the  di- 
rectors, in  making  calls,  may  be  used  as  evidence  by  the  company  in  suits  for 
calls,  against  one  who  subscribed  for  shares,  and  was  one  of  the  grantees  of  the 
charter  and  a  director  at  the  time  of  making  such  calls,  and  who  had  exercised 
the  rights  of  a  shareholder  froin  the  first.  White  Mountain  R.  v.  Eastman,  34 
N.  H.  R.  124.  As  to  the  effect  of  the  records  of  the  doings  of  the  corporation 
kept  by  their  own  officer,  being  evidence,  but  not  indispensable  evidence  of  such 
facts,  when  proved  by  third  parties,  see  Hudson  v.  Carman,  41  Me.  R.  84  ;  Coffin 
v.  Collins,  17  Id.  440 ;  Penobscot  Railw.  v.  White,  41  Me.  R.  512.  See,  also, 
Ind.  &  Cin.  R.  v.  Jewett,  16  Ind.  R.  273. 

9  D'Arcy  v.  Tamar,  K.  &  C.  Railw.  12  Jur.  N.  S.  548. 

1  8  &  9  Vict.  c.  16. 

2  Foster  v.  Oxford  W.  &  W.  R.  14  Eng.  L.  &  Eq.  306.  This  case  is  dis- 
cussed in  a  later  case  in  the  House  of  Lords.  Aberdeen  Railway  v.  Blakie,  23 
Law  Times,  315. 

*22 


86  PROCEEDINGS  UNDER  THE  CHARTER.  §  24. 

2.  But  it  has  been  held,  that  being  a  member  of  a  banking 
company,  who  were  the  bankers  and  treasurers  of  the  railway, 
and  who,  as  such,  received  and  gave  receipts  for  calls,  and  paid 
checks  drawn  by  the  directors,  will  not  disqualify  one  from  act- 
ing as  director,  but  that  this  clause  only  applied  to  such  con- 
tracts as  were  made  with  the  company  in  the  prosecution  of  its 
enterprise.3 

3.  Where  the  qualification  of  a  director  consisted  in  owning 
a  certain  number  of  the  shares,  the  qualification  is  not  lost  by  a 
mortgage  of  the  shares.4 

4.  Neither  the  bankruptcy  nor  absence  of  a  director,  and  vol- 
untarily ceasing  to  act  as  such,  will  put  an  end  to  his  character 
of  director,  unless  it  be  so  provided  in  the  deed  of  settlement.5 

5.  If  shareholders  are  dissatisfied  with  the  board  of  directors 
not  being  full,  that  may  be  a  ground  of  applying  for  a  manda- 
mus to  compel  the  company  to  complete  the  number.6 

3  Sheffield,  Ash.  &  Man.  Railw.  v.  Woodcock,  7  M.  &  W.  574  ;  s.  c.  2  Railw. 
C.  522. 

4  dimming  v.  Prescott,  2  Y.  &  Coll.  Eq.  Exch.  488. 

6  Phelps  v.  Lyle,  10  Ad.  &  Ellis,  113.  But  if  one  abscond  from  his  creditors 
the  office  is  thereby  vacated.     Wilson  v.  Wilson,  6  Scott,  540. 

*  Thames  Haven  Dock  &  Railway  v.  Rose,  3  Railw.  C.  177,  s.  c.  4  Man.  & 
Gr.  552.  Maule,  J.  Mozley  v.  Alstoa,-  1  Phillips,  790.  By  the  Lord  Chan- 
cellor. 


§  25.  PREROGATIVE   FRANCHISES.  87 


^CHAPTER    V. 


PREROGATIVE    FRANCHISES. 


1.   Control  of  internal  communication  in  a 
state  a  prerogative  franchise. 


Such  a  grant  confers  powers  pertaining 
exclusively  to  sovereignty,  as  taking  tolls, 
and  the  right  of  eminent  domain. 


§25.  1.  Railways  possess  also  many  extraordinary  powers  or 
franchises  which  partake  more  or  less  of  the  quality  of  sover- 
eignty, and  which  it  is  not  competent  for  the  legislature  even 
to  delegate  to  ordinary  corporations.  These  are  sometimes  called 
the  prerogative  franchises  of  the  corporation.  They  exist  in 
banks,  which  practically  supply  the  currency  of  the  country,  or 
its  representative,  and  railways,  which  have  already  engrossed 
the  chief  business  of  internal  communication  in  this  country, 
and  almost  throughout  the  civilized  world.  And  both  currency 
and  internal  communication  between  different  portions  of  a  state 
are  exclusively  the  prerogatives  of  sovereignty. 

2.  In  saying  that  it  is  not  competent  for  the  legislature  to  con- 
fer prerogative  franchises  upon  all  corporations,  nothing  more  is 
intended  than  that  these  prerogative  franchises  do  not  appertain 
to  all  the  operations  of  business,  and  must  therefore  of  necessity 
be  limited  to  those  persons,  whether  natural  or  artificial,  which 
are  occupied  in  matters  of  a  sovereign  or  prerogative  character, 
and  which  thus  render  an  equivalent  for  the  franchises  conferred.1 
This  subject  will  be  discussed  more  in  detail  under  the  titles  of 
Tolls  and  Eminent  Domain. 

1  State  v.  Boston,  Concord,  &  Montreal  R.  Co.  25  Vt.  R.  433, 442,  443.  But  the 
right  to  build  and  use  a  railway,  and  take  tolls  or  fares,  is  a  franchise  of  the  pre- 
rogative character,  which  no  person  can  legally  exercise  without  some  special 
grant  of  the  legislature.  But  it  is  competent  for  the  legislature  to  confer  this 
franchise  upon  a  foreign  corporation,  so  as  to  enable  it  to  take  land  for  the  pur- 
pose of  constructing  a  public  improvement  in  the  state.  Morris  Canal  &  Bank- 
ing Co.  v.  Townsend,  24  Barb.  658.  And  what  title  shall  be  acquired  by 
such  foreign  corporation,  and  whether  the  proposed  amendment  will  be  likely  to 
prove  beneficial  to  the  citizens  of  the  state,  is  a  question  solely  within  the  dis- 
cretion of  the  legislature.     lb. 

*23 


BY-LAWS  AND   STATUTES.  §  26. 

^CHAPTER    VI. 

BY-LAWS   AND    STATUTES. 

SECTION    I. 
Power  of  making  By-Laws  or  Statutes. 


1 .  May  control  conduct  of  passengers. 

2.  Must  be  reasonable  and  not  against  law. 

3.  Power  may  be  implied,  where  not  express. 

4.  Not  required  to  be  in  any  particular  form 


7.  Company   may   demand  higher  fare  if 

paid  in  cars. 

8.  Public  statutes  control  by-laws. 

9.  Cannot  impose  penalty. 


unless  by  special  provision.  10.    Cannot  refuse  to  be  responsible  for  bag- 

6.  Model  code  of  by-laws  framed  by  board  of  gage, 

trade  in  England. 

§  26.  1.  It  is  incident  to  all  corporations  to  enact  by-laws  or 
statutes  for  the  control  of  its  officers  and  agents,  and  to  regulate 
the  conduct  of  its  business  generally.  And  in  the  case  of  rail- 
ways this  includes  the  regulation  of  the  conduct  of  passengers 
and  others  who  are  in  any  way  connected  with  them  in  business, 
although  not  their  agents. 

2.  This  power  is  subject  to  some  necessary  limitations.  Such 
by-laws  must  not  infringe  the  charter  of  the  company  or  the  laws 
of  the  state,  must  not  be  unreasonable,  and  must  be  within  the 
range  of  the  general  powers  of  the  corporation.1  And  the  ques- 
tion, whether  reasonable  or  not,  is  to  be  determined  by  the  jury 
under  instructions  from  the  court,  being  a  mixed  question  of 
law  and  fact.2     But  in  a  recent  case  in  New  Jersey3  it  was  de- 

1  Elwood  v.  Bullock,  6  Q.  B.  383  ;  Calder  Navigation  Co.  v.  Pilling,  14  M.  & 
W.  76  ;  Child  v.  Hudson  Bay  Co.,  2  Peere  Wms.  207  ;  Angell  &  Ames,  c.  10  ;  2 
Kent,  Comm.  29G  ;  Davis  v.  Meeting  H.  in  Lowell,  8  Met.  321.  In  a  recent 
case  in  Kentucky  it  is  said  the  power  of  a  corporation  to  make  by-laws  is  limited 
by  the  nature  of  the  corporation  and  the  laws  of  the  country.  It  can  make  no 
rule  contrary  to  law,  good  morals,  or  public  policy.  Sayre  v.  Louisville  Union 
Benevolent  Association,  1  Duvall,  143. 

2  Day  v.  Owen,  5  Mich.  R.  520. 

3  Ayres  v.  Morris  &  Essex  Railw.  Co.,  5  Dutcher,  393. 

*24 


§  26.  POWER   OF  MAKING   BY-LAWS   OR   STATUTES.  89 

cided  that  the  question  whether  the  regulation  of  a  corporation 
affecting  third  persons  is  reasonable  is  a  question  of  fact ;  but 
the  validity  of  a  by-law  of  a  corporation,  which  affects  only 
its  members,  is  a  question  of  law  to  be  determined  by  the 
court. 

The  general  powers  of  business  corporations  to  enact  by-laws 
was  extensively  and  learnedly  discussed  in  a  somewhat  recent 
case  which  passed  through  the  Queen's  Bench,  the  Exchequer 
Chamber,  and  was  finally  determined  in  the  House  of  Lords.4 
The  case  turned  mainly  upon  the  reasonableness  of  the  by-law, 
which  excluded  any  person  who  had  become  bankrupt  or  noto- 
riously insolvent  from  becoming  one  of  the  governing  body  of 
the  company.  The  provision  of  the  by-law  was  held  entirely 
reasonable ;  but  that  having  admitted  the  party  to  the  office,  he 
could  not  be  removed  without  formal  proceeding  upon  notice 
and  hearing.  And  where  one  part  of  a  by-law  is  reasonable  it 
may  stand,  although  connected  with  another  part  which  is  not 
reasonable.5 

3.  By-laws  in  violation  of  common  right  are  void.0  The  power 
to  make  by-laws  is  usually  given  in  express  terms  in  the  charter. 
And  where  such  power  to  make  by-laws  is  given  in  the  charter 
upon  certain  subjects  to  a  limited  extent,  this  has  been  regarded 
as  *  an  implied  prohibition  beyond  the  limits  expressed,  upon 
the  familiar  maxim  Expressum  facit  cessare  taciturn.1 

4.  By-laws,  unless  by  the  express  provisions  of  the  charter  or 
general  statutes  of  the  state,  are  not,  in  this  country,  required  to 
be  enacted  or  promulgated  in  any  particular  form,  but  only  to  be 
enacted  at  some  legal  meeting  of  the  corporation.  But  in  Eng- 
land it  is  generally  considered  requisite  that  by-laws  be  made 
under  the  common  seal  of  the  corporation,  and  that  in  regard  to 
railways,  by-laws  affecting  those  who  are  not  officers  or  servants 

4  Reg.  v.  Saddlers'  Company,  G  Jur.  N.  S.  1113  ;  s.  c.  7  id.  138  ;  s.  c.  9  id. 
1081 ;  s.  c.  4  B.  &  S.  1059  ;  s.  c.  10  Ho.  Lds.  Cas.  404. 

5  Reg.  v.  Lundie,  8  Jur.  N.  S.  G40. 

6  Hayden  v.  Noyes,  5  Conn.  R.  391 ;  Adley  v.  The  Whitstable  Co.,  17  Vesey, 
315;  Clark's  case,  5  Coke,  64.  When  the  penalty  of  a  by -law.  is  imprison- 
ment, it  is  void  as  against  Magna  Charta.  But  such  power  may  be  given  by 
statute. 

7  Child  v.  Hudson  B.  Co.,  2  Peere  Wms.  207. 

*  25 


00  BY-LAWS   AND   STATUTES.  §  26. 

of  the  company  should  have  the  approval  of  the  Board  of  Trade 
or  Railway  Commissioners.8 

5.  By  many  of  the  special  railway  charters  in  England,  and 
by  the  Companies'  Clauses  Consolidation  Act  of  1845,  it  is  pro- 
vided that  railway  companies  may  make  by-laws  under  their  com- 
mon seal  "  for  the  purpose  of  regulating  the  conduct  of  the  offi- 
cers and  servants  of  the  company,  and  for  the  due  management 
of  the  affairs  of  the  company  in  all  respects  whatever."  And 
they  have  power  to  enforce  such  by-laws,  by  penalty,  and  by  im- 
prisonment for  the  collection  of  such  penalty.  But  a  by-law  re- 
quiring a  passenger,  not  producing  or  delivering  up  his  ticket, 
to  pay  fare  from  the  place  of  the  departure  of  the  train,  was  held 
not  to  be  a  by-law,  imposing  a  penalty,  and  therefore  not  justify- 
ing the  imprisonment  of  such  passenger.9 

6.  The  statute  requires  a  copy  of  such  by-laws  to  be  furnished 
every  officer  and  servant  of  the  company,  liable  to  be  affected 
thereby.  The  code  of  by-laws  framed  by  the  Board  of  Trade  in 
England  for  the  regulation  of  travel  by  railway,  and  generally 
adopted  there,  is  certainly  very  judicious  ;  and  if  some  similar 
one  could  be  adopted  and  enforced  here,  it  would  accomplish 
very  much  towards  security,  sobriety,  and  comfort,  in  railway 
travelling,  and  tend  to  exempt  the  companies  from  much  annoy- 
ance and  very  often  from  loss.10 

8  Walford,  249  ;  Hodges,  552,  553. 

9  Chilton  v.  London  &  Croydon  R.,  16  M.  &  W.  212  ;  s.  c.  5  Railw.  C.  4.  Parke, 
B.  says  :  "  This  is  not  the  case  of  a  penalty,  but  the  mere  demand  of  a  fare. 
Any  passenger  who  does  not,  at  the  end  of  his  journey,  produce  his  ticket,  may 
have  broken  his  contract  with  the  company,  and  be  liable  to  pay  his  full  tare 
from  the  most  remote  terminus.  But  this  is  not  a  penalty  or  forfeiture,  under 
section  163,  giving  a  right  to  arrest  for  non-payment  of  a  penalty  or  forfeiture." 
See,  also,  the  opinion  of  Rolfe,  B.,  from  which  it  appears  that  the  by-law  was 
considered  valid. 

10  Hodges,  453.  "  1.  No  passenger  will  be  allowed  to  take  his  seat  in  or  upon 
any  of  the  company's  carriages,  or  to  travel  therein  upon  the  said  railway,  with- 
out having  first  booked  his  place  and  paid  his  fare.  Each  passenger  booking 
his  place  will  be  furnished  with  a  ticket,  which  he  is  to  show  when  required  by 
the  guard  in  charge  of  the  train,  and  to  deliver  up  before  leaving  the  company's 
premises,  upon  demand,  to  the  guard  or  other  servant  of  the  company  duly  au- 
thorized to  collect  tickets.  Each  passenger  not  producing  or  delivering  up  his 
ticket  will  be  required  to  pay  the  fare  from  the  place  whence  the  train  original- 
ly started. 


§  26.  POWER   OF   MAKING   BY-LAWS   OR   STATUTES.  91 

*  7.  In  a  recent  case  in  Vermont,  it  was  held,  that  railway  com- 
panies have  the  power  to  make  and  enforce  all  reasonable  regu- 
lations in  regard  to  the  conduct  of  passengers,  and  to  discrimi- 
nate between  fares  paid  in  the  cars  and  at  the  stations,  and  to 
remove  all  persons  from  their  cars  who  persist  in  disregarding 
such  regulations,  in  a  reasonable  manner  and  proper  place,  al- 
though between  stations. 

8.  But  this  may  be  controlled  as  to  existing  railways  even,  by 
*  general  legislation  of  the  state.  And  where  a  statute  gave  all 
railways  the  power  to  remove  those  who  violated  any  of  the  by- 

"  2.  Passengers  at  the  road  stations  will  only  be  booked  conditionally,  that  is 
to  say,  in  case  there  should  be  room  in  the  train  for  which  they  are  booked ;  in 
case  there  shall  not  be  room  for  all  the  passengers  booked,  those  booked  for  the 
longest  distance  shall  have  the  preference  ;  and  those  booked  for  the  same  dis- 
tance shall  have  priority  according  to  the  order  in* -which  they  are  booked. 

"  3.  Every  person  attempting  to  defraud  the  company,  by  riding  in  or  upon 
any  of  the  company's  carriages,  without  having  previously  paid  his  fare,  or  by 
riding  in  or  upon  a  carriage  of  a  higher  class  than  that  for  which  he  has  booked 
his  place,  or  by  continuing  his  journey  in  or  upon  any  of  the  company's  carriages 
beyond  the  destination  for  which  he  has  paid  his  fare,  or  by  attempting  in  any 
other  manner  whatever  to  evade  the  payment  of  his  fare,  is  hereby  subjected  to 
a  penalty  not  exceeding  forty  shillings. 

"  4.  Smoking  is  strictly  prohibited  both  in  and  upon  the  carriages,  and  in  the 
company's  stations.  Every  person  smoking  in  a  carriage  is  hereby  subjected  to 
a  penalty  not  exceeding  forty  shillings ;  and  every  person  persisting  in  smoking 
in  a  carriage  or  station,  after  being  warned  to  desist,  shall,  in  addition  to  incur- 
ring a  penalty  not  exceeding  forty  shillings,  be  immediately,  or,  if  travelling,  at 
the  first  opportunity,  removed  from  the  company's  premises,  and  forfeit  his 
fare. 

"  5.  Any  person  found  in  the  company's  carriages  or  stations  in  a  state  of  in- 
toxication, or  committing  any  nuisance,  or  otherwise  wilfully  interfering  with  the 
comfort  of  other  passengers,  and  every  person  obstructing  any  of  the  company's 
officers  in  the  discharge  of  their  duty,  is  hereby  subjected  to  a  penalty  not  ex- 
ceeding forty  shillings,  and  shall  immediately,  or,  if  travelling,  at  the  first  oppor- 
tunity, be  removed  from  the  company's  premises  and  forfeit  his  fare. 

"  6.  Any  passenger  cutting  the  linings,  removing  or  defacing  the  number- 
plates,  breaking  the  windows,  or  otherwise  wilfully  damaging  or  injuring  any  of 
the  company's  carriages,  shall  forfeit  and  pay  a  sum  not  exceeding  £  5  in  addi- 
tion to  the  amount  of  damage  done." 

"  Note.  —  Persons  wilfully  obstructing  the  company's  officers,  in  cases  where 
personal  safety  is  concerned,  are  liable,  under  the  3  &  4  Vict.  c.  97,  section  16, 
to  be  apprehended  and  fined  £5,  with  two  months'  imprisonment  in  default  of 
payment." 

*  26,  27 


92  BY-LAWS   AND   STATUTES.  §  26. 

laws  or  regulations  of  the  company  from  their  cars,  at  the  regu- 
lar stations,  this  was  held  to  carry  an  implied  prohibition  from 
removing  such  persons  at  other  points.11  And  where  one  refuses 
to  pay  fare,  and  the  train  is  stopped  for  the  purpose  of  putting 
him  off  the  train,  at  a  dwelling-house,  as  by  the  statute  of  New 
York  is  allowed,  the  right  of  the  conductor  is  not  affected  by  a 
subsequent  offer  to  pay  fare.12  So,  too,  one  may  be  ejected  from 
the  cars  by  the  conductor  for  disorderly  conduct,  and  in  justifi- 
cation, it  is  competent  to  prove  any  improper  conduct  during  the 
entire  passage,  and  this  cannot  be  controverted  by  general  evi- 
dence of  the  good  reputation  of  the  person  for  sobriety.  And 
one  may  be  expelled,  also,  for  refusing  to  surrender  his  ticket  to 
the  conductor  on  request,  in  conformity  with  the  general  regula- 
tions of  the  company.13 

9.  But  it  has  been  held,  that  a  general  power  to  make  by-laws 
for  the  regulation  of  the  use  of  a  canal,  will  not  justify  the  pro- 
prietors in  closing  the  navigation  of  the  canal  on  Sundays,14  nor 
in  making  by-laws  subjecting  the  shares  to  forfeiture  for  nonpay- 
ment of  calls,  unless  that  power  is  expressly  given  by  the  charter 
or  by  statute.15 

10.  And  a  by-law  declaring  that  the  company  would  not  be 
responsible  for  a  passenger's  baggage,  unless  booked  and  the  car- 
riage paid,  is  bad,  as  inconsistent  with  the  general  law,  allowing 
railway  passengers  to  carry  a  certain  amount  and  kind  of  bag- 
gage.16 

11  Stephen  v.  Smith,  29  Vt.  R.  160  ;  Chicago,  Burlington  &  Quincy  R.  v.  Parks, 
18  111.  R.  460.  See  late  case  in  New  Hampshire,  in  ■which  it  is  held,  railways 
may  lawfully  discriminate  between  fare  paid  in  the  cars  and  at  the  stations. 
Hilliard  u.  Goold,  34  N.  H.  R.  230,  Post,  §  28,  n.  17.     Post,  §  160. 

12  People  v.  Jillson,  3  Parker,  C.  R.  234. 

13  People  v.  Caryl,  3  Parker,  C.  R.  326. 

11  Calder  Nav.  Co.  v.  Pilling,  14  M.  &  W.  76 ;  s.  c.  3  Railw.  C.  735.  But  it 
is  questionable  whether  this  case  is  maintainable,  in  this  country,  upon  any  such 
grounds. 

13  Matter  of  Long  Island  Railw.  19  Wend.  37 ;  s.  c.  2  Am.  Railw.  C.  453. 

10  Williams  v.  Great  Western  Railway,  28  Eng.  L.  &  Eq.  439.  But  it 
seems  somewhat  questionable,  whether  the  principle  of  this  decision  can  ulti- 
mately be  maintained.  It  seems  to  be  no  unreasonable  abridgment  of  the  right 
of  a  passenger  to  carry  a  certain  weight  and  kind  of  baggage,  to  require  it  to 
be  booked  and  carriage  paid. 


§  27.     BY-LAWS  REGULATING  STATIONS  AND  GROUNDS.       93 

11.  The  members  of  a  joint-stock  company  are  affected  by  all 
binding  statutes  of  the  corporation  from  the  time  of  their  enact- 
ment, without  any  formal  notice  of  their  existence.  And  all 
persons  legally  affected  by  such  statutes,  rules,  or  by-laws  of  the 
corporation,  must  conform  to  their  requirements  from  the  time 
they  become  aware  of  their  existence.17 


SECTION    II. 

By-Laws  regulating'  the  use  of  stations  and  grounds. 

1.  Mai/  exclude  persons  without  business.         !  4.  Probable  cause  will  justify. 

2.  May  regulate  the  conduct  of  others.  5.  In    civil    suit    must   prove    violation   of 

3.  Superintendent  may  expel  for  violation  of  \  rules. 

rules. 

§27.  1.  Questions  have  sometimes  been  made,  in  regard  to 
the  right  of  railway  companies  to  exclude  persons  from  their 
grounds,  who  had  no  business  to  transact  there,  connected  with 
the  *  company,  or  to  establish  regulations  or  by-laws  to  govern 
the  conduct  of  such  persons  as  had  occasion  to  come  there,  and 
to  exclude  others.  But,  upon  the  whole,  there  seems  little 
ground  to  question  the  right.1 

2.  A  railway  corporation  has  authority  to  make  and  carry  into 
effect  reasonable  regulations  for  the  conduct  of  all  persons  using 
the  railway,  or  resorting  to  its  depots,  without  prescribing  such 
regulations  by  formal  by-laws  ;  and  the  superintendent  of  a  rail- 
way station,  appointed  by  the  corporation,  has  the  same  author- 
ity, by  delegation. 

3.  Such  superintendent  may  exclude  from  the  stations  and 
grounds  persons  who  persist  in  violating  the  reasonable  regula- 
tions prescribed  for  their  conduct,  and  thereby  annoy  passengers, 
or  interrupt  the  officers  and  servants  of  the  company  in  the  dis- 
charge of  their  duty.  Thus,  where  the  entrance  of  innkeepers 
and  their  servants  into  a  railway  station  to  solicit  passengers  to 

17  Woodfin  v.  Ins.  Co.,  6  Jones'  Law,  558. 

1  Barker  v.  Midland  Railw.  36  Eng.  L.  &  Eq.  253 ;  Commonwealth  v.  Power, 
7  Met.  596 ;  s.  c.  1  Am.  Railw.  C.  389  ;  Hall  v.  Power,  12  Met.  482. 

*28 


04  BY-LAWS    AND    STATUTES.  §  27. 

go  to  their  houses,  produces  such  effect,  they  may  he  excluded 
from  coming  within  the  station  ;  and  if,  after  notice  of  a  regula- 
tion to  that  effect,  they  attempt  to  violate  it,  and  after  notice  to 
leave,  refuse  to  do  so,  they  may  he  forcibly  expelled  by  the  ser- 
vants of  the  company,  using  no  unnecessary  force. 

4.  And  where  an  innkeeper  had  been  accustomed  to  annoy 
passengers  in  this  manner,  and  had  been  informed  by  the  super- 
intendent of  the  station  that  he  must  do  so  no  more,  but  still 
continued  the  practice,  and  afterwards  obtains  a  ticket  for  a  pas- 
sage in  the  cars,  with  the  bona  fide  intention  of  entering  the  cars 
as  a  passenger,  and  goes  into  the  station  on  his  way  to  the  cars, 
and  the  superintendent,  believing  he  had  entered  for  his  usual 
purpose,  orders  him  to  go  out,  and  he  does  not  exhibit  his  ticket, 
nor  give  notice  of  his  real  intention,  but  pushes  forward  towards 
•the  cars,  and  the  superintendent,  and  his  assistants  remove  him 
from  the  station,  using  no  unnecessary  force,  the  removal  is  jus- 
tifiable,2 and  not  an  indictable  offence.2 

5.  But  the  superintendent  cannot  remove  a  person  from  the 
station  and  grounds  of  the  company,  merely  because  such  per- 
son, in  the  judgment  of  the  superintendent,  and  without  proof 
of  the  fact,  violated  the  regulations  of  the  company,  or  conducted 
himself  *  offensively  towards  the  superintendent.3  And  it  was 
said  if  such  person  is  removed  for  an  alleged  violation  of  the 
regulations  of  the  company,  and  it  finally  is  shown  that  he  did 
not  in  fact  violate  any  of  such  regulations,  he  may  recover  dam- 
ages of  the  superintendent  of  the  station  by  whose  order  he  was 
removed,  notwithstanding  such  superintendent  acted  in  good 
faith.3  And  in  such  case,  it  is  not  competent  to  show  that  the 
plaintiff  had  been  guilty  of  former  violations  of  other  regula- 
tions of  the  company.3 

2  Commonwealth  v.  Power,  7  Met.  596 ;  Markhani  v.  Brown,  8  N.  Hamp.  R. 

523. 

3  Hall  v.  Power,  12  Met.  482,  s.  c.  1  Am.  Railw.  C.  410.  There  is  an  appar- 
ent discrepancy  in  the  manner  of  stating  the  point  of  the  decision  of  this  case, 
and  that  of  The  Commonwealth  v.  Power,  7  Met.  596,  in  regard  to  defend- 
ant bein<*  justified,  if  he  acted  in  good  faith,  upon  probable  cause,  which  does 
not  seem  to  be  warranted,  by  any  recognized  distinction,  between  a  civil  suit, 
for  damages,  and  a  public  prosecution  for  assault  and  battery,  but  the  court  evi- 
dently intend  no  distinction  in  the  cases.     The  law  is  well  stated,  by  Shaw,  Ch. 

*29 


§  27.  BY-LAWS   REGULATING   STATIONS   AND   GROUNDS.  95 

6.  Under  the  English    statute   of   17  &   18  Vic.,  requiring 
among  other  things  that  the  superior   courts    of  Westminster 

J.,  in  the  former  ease,  7  Met.  602  :  "  We  are  therefore  of  opinion,  that  upon  the 
evidence  detailed  in  the  judge's  report,  the  jury  should  be  instructed  in  a  man- 
ner somewhat  as  follows:  That  if  Power  had  been  placed  in  charge  of  the  depot 
bjr  the  corporation,  as  superintendent,  he  had  all  the  authority  of  the  corpora- 
tion, both  as  owners  and  occupiers  of  real  estate,  and  also  as  carriers  of  passen- 
gers, incident  to  the  duty  of  control  and  management :  That  this  power  and  au- 
thority of  the  corporation  extended  to  the  reasonable  regulation  of  the  conduct 
of  all  persons  using  the  railroad,  or  having  occasion  to  resort  to  the  depots,  for 
any  purpose  :  That  this  power  was  properly  to  be  executed  by  a  superintendent, 
adapting  his  rules  and  regulations  to  the  circumstances  of  the  particular  depot 
under  his  charge ;  and  that  it  was  not  necessary  that  such  regulations  should  be 
prescribed  by  by-laws  of  the  corporation :  That  the  opening  of  depots  and  plat- 
forms for  the  sale  of  tickets,  for  the  assembling  of  persons  going  to  take  passage, 
or  landing  from  the  cars,  amounts  in  law  to  a  license  to  all  persons,  prima  facie, 
to  enter  the  depot,  and  that  such  entry  is  not  a  trespass;  but  that  it  is  a  license 
conditional,  subject  to  reasonable  and  useful  regulations ;  and,  on  non-compli- 
ance with  such  regulations,  the  license  is  revocable,  and  may  be  revoked  either 
as  to  an  individual,  or  as  to  a  class  of  individuals,  by  actual  or  constructive  no- 
tice to  that  effect :  That  if  the  platform,  as  part  of  the  depot,  is  appropriated  to 
and  connected  with  the  entrance  of  passengers  into  the  cars,  and  the  exit  of 
passengers  from  the  cars,  and  for  the  accommodation  of  their  baggage,  and  if 
the  soliciting  of  passengers  to  take  lodgings  in  particular  public-houses,  by  the 
keepers  of  them  or  their  servants,  is  a  purpose  not  directly  connected  with  the 
carriage  of  passengers  by  the  railroad,  on  their  entrance  into  or  exit  from  cars; 
that  if,  when  urged  with  earnestness  and  importunity,  it  is  an  annoyance  of  pas- 
sengers, and  interruption  to  their  proper  business  of  taking  or  leaving  their  seats 
in  the  cars,  and  procuring  or  directing  the  disposition  of  their  baggage  ;  or  if  the 
presence  of  such  persons,  for  such  a  purpose,  is  a  hinderance  and  interruption 
to  the  officers  and  servants  of  the  corporation,  in  the  performance  of  their  re- 
spective and  proper  duties  to  the  corporation,  as  passenger-carriers;  then  the 
prohibition  of  such  persons  from  entering  upon  the  platform,  is  a  reasonable  and 
proper  regulation,  and  a  person  who,  after  actual  or  constructive  notice  of  such 
regulation,  violates  or  attempts  to  violate  it,  thereby  loses  his  license  to  enter  the 
depot ;  that  such  license  as  to  him  may  be  revoked ;  and  if,  upon  notice  to  quit 
the  depot,  he  refuses  so  to  do,  he  may  be  removed  therefrom  by  the  superintend- 
ent and  the  persons  employed  by  him ;  and  if  they  use  no  more  force  than  is 
necessary  for  that  purpose,  such  use  of  force  is  not  an  assault  and  battery,  but 
is  justifiable  :  that  as  to  the  circumstances  of  the  present  case,  if  the  superin- 
tendent had  issued  a  circular,  giving  notice  to  all  innkeepers  and  landlords  that 
he  had  prohibited  them  from  entering  the  depot  to  solicit  persons  to  go  to  their 
respective  houses  as  guests,  and  if  this  notice  came  to  Hall,  and  he  afterwards, 
and  after  special  notice  to  him  personally,  had  attempted  to  violate  this  prohi- 
bition, and  solicit  passengers :  and  if,  upon  the  particular  occasion,  he  gave  no 


96  BY-LAWS    AND    STATUTES.  §  27 

Hall  shall  enforce  the  duty  of  railway  companies  in  regard  to  their 
traffic  in  goods  and  passenger  transportation,  it  was  held  a  proper 
ground  for  granting  a  rule  to  show  cause  why  an  injunction 
should  not  issue,  that  at  one  of  the  stations  of  the  company, 
where  an  important  junction  with  other  roads  occurred,  no 
covered  place  was  provided  for  the  accommodation  of  the  passen- 
gers.4 But  the  English  Railway  Traffic  Act  does  not  justify  the 
courts  in  requiring  the  companies  to  make  the  same  charges, 
or  to  afford  the  same  facilities  in  regard  to  return  tickets  of  a 
particular  class,  on  one  of  their  branches,  which  they  do  upon 
others.4  To  constitute  inequality  of  charge,  it  must  be  for  pass- 
ing over  the  same  line,  or  the  same  part  of  the  line.4 

7.  To  justify  the  courts  in  interfering  to  require  the  compa- 
nies constituting  a  continuous  line  to  run  through  trains,  it  must 
be  shown  that  public  convenience  requires  it,  and  that  it  can 
reasonably  be  done.5  And  they  will  not  interfere  in  such  cases 
where  there  is  another  route  where  through  tickets  may  be  ob- 
tained, although  somewhat  longer,  no  additional  cost  or  serious 
loss  of  time  being  thereby  incurred,  and  there  being  no  general 
complaint  of  public  inconvenience  on  that  account.5 

8.  A  railway  freight  station  or  warehouse  kept  by  a  railway 
company  for  the  storage  of  goods  transported  by  them,  is  not 

notice  of  coming  for  any  other  purpose  ;  and  if  the  defendant  Power  met  him  on 
his  way  to  the  platform,  told  him  he  must  not  go  there,  laid  his  hands  on  him, 
and  ordered  him  to  leave  the  depot,  without  any  inquiry  as  to  the  purposes  of 
Hall,  and  Hall  made  no  reply,  but  pressed  forward  and  attempted  to  reach  the 
platform,  in  spite  of  the  efforts  of  Power ;  this  was  strong  prima  facie  evidence 
that  he  was  going  there  with  intent  to  solicit  passengers,  in  violation  of  the  no- 
tice and  revocation  of  license ;  and  that  if  he  gave  no  notice  of  his  intention  to 
enter  the  car  as  a  passenger,  and  of  his  right  to  do  so ;  and  if  Power  believed 
that  his  intention  was  to  violate  a  subsisting  reasonable  regulation ;  then  he  and 
his  assistants  were  justified  in  forcibly  removing  him  from  the  depot :  That  if 
Hall  gave  no  notice  of  his  .having  a  ticket,  of  his  intention  and  purpose  to  enter 
the  cars  as  a  passenger,  and  of  his  right  to  do  so,  and  that  Power  had  no  notice 
of  it,  then  Hall  could  not  justify  his  conduct,  and  make  Power  a  wrongdoer,  by 
proving  the  possession  of  such  a  ticket,  or  of  his  intent  to  go  in  the  cars  to  Rich- 
mond, as  a  passenger ;  and  that  he  was  to  be  considered  as  standing  on  the  same 
footing  as  if  he  had  not  possessed  such  ticket." 

4  Caterham  Railw.  Co.  r.  London  &  Br.  Railw.  Co.,  40  Eng.  L.  &  Eq.  259. 
s.  c.  1  C.  B.  (X.  S.)  410. 

6  Barret  v.  Great  Northern  Railw.,  1  C.  B.  (N.  S.),  423. 


§28. 


BY-LAWS   AS   TO   PASSENGERS. 


97 


exempt  from  the  process  of  search  warrant  under  the  statute 
against  keeping  and  sale  of  spirituous  liquors ;  nor  is  it  necessary 
that  such  warrant  should  be  executed  during  the  usual  business 
hours,  or  that  the  officer  should  consult  the  person  who  has 
charge  of  the  station.0 


♦SECTION    III. 


By-Laws  as  to  Passengers. 


1 .  By-laws  as  statutes. 

2.  As  mere  rules,  or  regulations. 

3.  Requiring  larger  fares,  for  shorter  dis- 

tances. 

4.  Requiring  passengers  to  go  through  in  same 

train. 

5.  Arrest  of  passenger,   by  company's   ser- 

vants. 

7.  Company  liable  for  act  of  servant. 

8.  By-law  must  be  published. 


9.  Excluding  merchandise  from  passenger- 
trains. 

10.  Discrimination  between  fares  paid  in  cars 

and  at  stations. 

1 1 .  Liability  for  excess  of  force. 

12.  Officer  de  facto   may  enforce  rules  of 

company. 

13.  Company  cannot  enforce  rule  against  pas- 

senger, when  in  fault  themselves. 


§  28.  1.  A  distinction  is  sometimes  made  between  by-laws, 
and  orders,  or  regulations,  the  former  being  supposed,  in  strict- 
ness of  language,  to  have  reference  exclusively  to  the  govern- 
ment of  their  own  members,  and  of  their  corporate  officers.1 
And  it  is  true  that  such  other  ordinances,  as  any  owner  of  the 
buildings  and  grounds,  *  about  a  railway  station,  employed  in  car- 
rying passengers,  might  find  it  convenient  to  establish,  are  cer- 
tainly not  what  is  ordinarily  understood  by  the  by-laws,  or 
statutes,  of  the  corporation. 

2.   But  in  the  English  cases  they  are  both  called  by-laws.2 

6  And.  Railw.  Co.  v.  Richards,  41  Me.  R.  233. 

1  Shaw,  Ch.  J.,  in  Commonwealth  v.  Power,  7  Met.  601. 

2  Chilton  v.  The  London  &  Croydon  Rail.,  5  Railw.  C.  4.  It  would  seem  from 
the  opinion  of  Parke,  B.,  that  the  by-law  was  regarded  as  valid,  but  as  imper- 
fect, in  not  subjecting  the  passenger  to  a  penalty  in  terms.  The  other  judges 
doubted  whether  the  act  was  intended  to  give  the  company  power  to  imprison 
the  plaintiff",  or  any  one,  except  for  some  offence  against  the  act.  But  all  seemed 
to  concur  in  the  opinion  that  the  passenger  was  bound  to  comply  with  the  regu- 
lation, or  submit  to  the  alternative.     State  v.  Overton,  4  Zab.  435. 

VOL.  I.  7  *30,  31 


98  BY-LAWS   AND   STATUTES.  §  28. 

Thus,  a  by-law,  that  each  passenger,  on  booking  his  place,  should 
be  furnished  with  a  ticket,  to  be  delivered  up  before  leaving  the 
company's  premises,  and  that  each  passenger,  not  producing  or 
delivering  up  his  ticket,  should  be  required  to  pay  fare  from  the 
place  whence  the  train  originally  started,  was  held  not  to  be  a 
by-law  imposing  a  penalty.2  And  that  therefore  the  non-produc- 
tion of  the  ticket,  with  which  a  passenger  had  been  furnished, 
and  his  refusal  to  pay  fare  from  the  place  whence  the  train 
started,  did  not  justify  his  arrest,  but  only  rendered  him  liable 
to  pay  fare  from  the  place  whence  the  train  started. 

3.  But  in  a  late  English  case,3  where  the  company  had  made 
a  legal  by-law,  that  any  passenger,  who  should  enter  a  carriage 
of  the  company,  without  first  having  paid  his  fare,  should  be 
subjected  to  a  penalty  not  exceeding  405.,  a  passenger,  desiring 
to  go  to  Diss  station,  where  the  fare  was  Is. ,  procured  a  ticket 
for  Norwich,  a  more  distant  station  on  the  line,  but  where  the 
fare  was  but  55. ,  in  consequence  of  competition,  and  entered  the 
carriage  accordingly,  and  at  Diss  offered  to  surrender  his  ticket, 
but  refused  to  pay  the  difference  in  fare,  he  was  prosecuted  for 
the  penalty,  and  a  majority  of  the  Court  of  Queen's  Bench  held 
he  was  not  liable,  on  the  ground  that  he  had  paid  his  fare  before 
entering  the  carriage.  Lord  Campbell  said,  "  I  cautiously  ab- 
stain from  expressing  any  opinion,  as  to  the  power  of  the  com- 
pany to  make  special  regulations,  or  by-laws,  so  as  to  enforce 
larger  fares,  for  shorter  distances."  "  Had  not  Frere,  within 
the  meaning  of  the  by-law,  paid  his  fare,  before  he  entered  the 
carriage  ?  I  think  he  had.  He  had  paid  the  full  fare  from  Col- 
chester to  Norwich,  all  that  was  required  of  him  ;  and  he  cannot 
be  said  to  be  a  person  who  had  entered  the  company's  carriage 
without  payment  of  fare."  i 

3  Reg.  v.  Frere,  29  Eng.  L.  &  Eq.  143. 

*  But  the  argument  of  Lord  Campbell  on  this  point  does  not  seem  altogether 
satisfactory.  Whether  the  passenger  had  paid  his  fare  depended  upon  the  va- 
lidity of  the  by-law,  and  could  not  be  fairly  determined  upon  any  other  basis, 
it  would  seem.  Frere  had  paid  fare  to  Norwich,  but  had  not  paid  fare  to  Diss, 
unless  the  by-law  was  void ;  so  that  the  validity  of  the  by-law  did  seem  to  be 
necessarily  involved  in  the  decision.  And  the  decision  of  the  court,  although 
not  professing  to  do  so,  did  virtually  disregard  it.  For  if  the  by-law  was  valid, 
Frere  had  no  more  paid  his  fare  than  if  he  had  taken  a  ticket  to  a  station  short 


§  28.  BY-LAWS   AS   TO   PASSENGERS.  99 

*  4.  It  has  been  held  that  a  regulation  requiring  passengers  to 
go  through,  in  the  same  train,  and  that  if  one  do  not,  requiring 
fare  for  the  remainder  of  the  route  is  valid.5 

of  his  destination.  And  if  the  by-law  meant  anything  sensible,  it  could  only 
mean,  having  paid  fare  to  his  destination.  Any  other  construction  looks  like  an 
evasion.  ' 

5  Cheney  v.  Boston  &  Maine  Railw.,  11  Met.  121  ;  s.  c.  1  Am.  Railw.  C.  COL 
In  this  case  the  passenger,  when  he  bought  his  ticket,  did  not  know  of  the  regu- 
lation, but  was  informed  of  it  in  the  cars,  and  his  money  offered  to  be  refunded, 
deducting  what  he  had  travelled ;  but  he  refused  to  make  the  arrangement, 
and  demanded  his  ticket,  in  exchange  for  the  check  which  had  been  given  him, 
marked  "  good  for  this  trip  only."  He  stopped  by  the  way,  and  went  on  the 
same  day  in  the  next  train  ;  and  when  he  presented  his  check,  it  was  refused, 
and  fare  demanded,  which  he  was  obliged  to  pay.  The  court  held  the  passen- 
ger could  not  recover  the  money  of  the  company,  and  that  it  made  no  difference 
whether  the  plaintiff  were  aware  of  the  regulation  or  not,  at  the  time  he  pur- 
chased his  ticket.  He  was  bound  to  inform  himself,  or  accept  of  the  ticket,  for 
what  it  entitled  him  to  demand,  by  the  rules  of  the  company. 

This  subject  is  a  good  deal  discussed  in  a  late  case  in  New  Jersey,  and  a  sim- 
ilar result  arrived  at.  It  is  there  said  that  the  company  may  discriminate  between 
way  and  through  fare,  unless  prohibited  by  law.  State  v.  Overton,  4  Zab.  434. 
In  Pier  v.  Finel,  24  Barb.  514,  where  a  person  was  put  off  the  cars  of  a  railway 
company  for  refusal  to  pay  fare,  having,  and  offering  to  the  conductor,  a  ticket 
of  the  company,  dated  a  few  days  before,  and  marked  "  good  for  this  trip  only," 
but  unmutilated,  it  being  the  practice  of  the  conductors  upon  that  road,  where  a 
ticket  had  been  used,  to  give  it  a  mark  ;  it  was  held  that  the  ticket  was  prima 
facie  evidence  that  the  holder  had  paid  the  regular  fare  for  it,  and  of  his  right 
to  be  transported,  at  some  time,  between  the  places  specified,  on  some  passenger 
train  ;  and  if  unmutilated,  the  presumption  was,  that  it  had  never  been  used, 
and  that  it  imposed  upon  the  company  the  duty  to  so  transport  the  holder. 

It  was  also  held  that  the  indorsement,  "  good  for  this  trip  only,"  had  reference 
to  no  particular  trip,  or  any  particular  time,  but  only  to  some  one  continuous 
trip.  That  the  passenger  might  demand  a  passage,  as  well  on  a  subsequent  day 
as  the  one  upon  which  the  ticket  bore  date,  and  was  issued. 

This  decision  seems  to  us  not  precisely  to  meet  the  whole  question  involved 
in  the  case,  that  is,  whether  such  a  regulation,  as  was  claimed  to  be  evidenced 
by  the  ticket  and  the  indorsement,  was  a  valid  and  binding  regulation.  There 
can  be  no  doubt  such  a  regulation  exists,  upon  many  of  the  roads,  in  this  coun- 
try, and  that  such  a  ticket  is  understood,  by  the  community  generally,  as  en- 
titling the  holder  only  to  a  passage  on  that  day,  at  most,  if  not  in  the  very  next 
train. 

We  very  readily  perceive  that  the  form  of  the  ticket  is  susceptible  of  the  con- 
struction put  upon  it  by  the  court.  But  as  we  are  satisfied  that  is  not  the  un- 
derstanding of  those  who  issue  such  tickets,  or  of  those  who  buy  them,  as  a  gen- 
eral thing,  we  should  have  been  gratified  to- see  the  main  question  grappled  with. 

*32 


100  BY-LAWS    AND   STATUTES.  §  28. 

And  where  the  ticket  was  marked  "  good  only  two  days  after 
date,"  it  was  held  to  be  evidence  of  a  contract  to  that  effect 

We  do  not  intend  to  intimate  any  question  of  the  general  soundness  of  the 
views  expressed  in  this  case,  upon  what  we  regard  as  the  true  construction  of  the 
ticket.  We  are  inclined  to  think  they  are  sound.  For  it  seems  to  us  to  be  con- 
trary to  the  first  principles  of  justice  and  equity,  that  if  the  passenger  is,  for  suf- 
ficient cause,  delayed,  or  hindered  from  going,  according  to  his  expectation,  at 
the  time  he  pays  his  fare,  that  he  should  thereby  lose  all  benefit  of  the  payment 
when  he  does  desire  to  go.  The  company  may  not  be  bound  to  refund  the 
money,  but  they  certainly  are  bound,  upon  general  principles,  to  allow  the  hold- 
er of  the  ticket  the  benefit  of  his  unused  portion  of  it,  deducting,  of  course,  any 
loss,  or  inconvenience  to  them,  by  reason  of  the  contract  not  being  carried  into 
effect,  according  to  its  terms.  And  any  regulation  of  the  company,  which  should 
deprive  the  passenger  of  this  benefit,  would  operate  a  forfeiture,  which  no  court 
of  justice  will  favor,  where  the  passenger  is  not  in  fault.  It  seems,  in  principle, 
to  be  controlled  by  the  rule  of  law  applied  to  work  done  upon  the  company's 
road,  but  not  according  to  the  contract,  and  which,  nevertheless,  the  company 
are  benefited  by,  to  a  certain  extent.  In  such  cases  the  company  must  pay  for 
the  work,  at  its  value  to  them,  that  is,  deducting  all  losses,  in  consequence  of  it 
not  being  done  as  stipulated.     Post,  §  113,  pi.  4. 

So,  also,  if  the  passenger  refuse  to  surrender  his  ticket  in  exchange  for  the 
conductor's  check,  according  to  the  regulations  of  the  company,  and  at  any  point 
of  the  route  leave  the  cars,  without  surrendering  his  ticket,  he  is  liable  to  pay 
fare  for  the  distance  he  rode,  or  upon  his  refusal  to  surrender  his  ticket,  or  to  pay 
fare,  the  conductor  is  justified  in  expelling  him  from  the  cars.  Northern  Rail- 
road v.  Page,  22  Barb.  130.  But  passengers  are  not  obliged  to  surrender  their 
tickets  without  having  a  check  in  exchange  by  which  they  may  be  able  to  show 
that  they  have  paid  fare.  State  v.  Thompson,  20  New  H.  R.  250.  In  Hibbard 
v.  New  York  &  Erie  Railway,  1  Smith,  455,  New  York  Court  of  Appeals,  it  was 
held,  that  a  regulation,  made  by  a  railway  company,  requiring  passengers  to  ex- 
hibit their  tickets  whenever  requested  by  the  conductor,  and  directing  those 
who  refused  to  do  so  to  be  expelled  from  the  cars,  was  reasonable  and  valid,  and 
that  passengers  were  bound  to  conform  to  it,  and  forfeited  all  right  to  be  carried 
further  by  refusal  to  do  so.  And  it  was  further  held,  that  the  binding  force  of 
such  a  regulation  was  matter  of  law  to  be  decided  by  the  court,  and  that  under 
such  a  regulation,  where  a  passenger  refused,  on  request,  to  exhibit  his  ticket  a 
second  time,  the  train  having  in  the  mean  time  passed  a  station,  it  was  error  in 
the  court  to  charge  the  jury,  that  the  passenger  was  bound  to  exhibit  his  ticket, 
when  reasonably  requested,  and  that  if  the  conductor  knew  he  had  paid  his  fare 
he  had  no  right  to  expel  him  from  the  cars. 

It  is  intimated  in  this  case,  that  one  who  has  thus  forfeited  his  right,  cannot 
regain  it  by  exhibiting  his  ticket  after  the  train  is  stopped  for  the  purpose  of 
putting  him  off.  And  also,  that  the  company  would  not  be  liable  if  the  conductor 
put  a  wrong  construction  upon  the  regulation,  and  thus  wrongfully  expelled  a 
passenger,  or  if  he  were  guilty  of  an  excess  of  force.     But  see  §  169,  post. 


§  28.  BY-LAWS   AS   TO   PASSENGERS.  101 

between  the  railway  and  the  purchaser,  and  to  be  of  no  force 
after  the  expiration  of  the  term.6  And  where  the  regulations 
of  the  company  allow  the  conductors,  by  making  a  memorandum 
on  a  ticket,  to  permit  the  passenger  to  stay  over  and  pass  upon 
another  train,  and  one  stayed  over  without  procuring  such  mem- 
orandum, it  was  held  that  another  conductor,  to  whom  he  pre- 
sented his  ticket  in  attempting  to  pass  at  a  subsequent  time,  was 
justified  in  demanding  fare,  and  putting  the  passenger  off  the 
train  upon  his  refusal  to  pay.7 

5.  In  one  case,8  where  the  plaintiff,  upon  the  information  of 
the  station-clerk  that  he  might  return  at  a  given  hour  upon  an 
*  excursion  ticket,  purchased  such  ticket  and  took  the  train 
named  by  such  clerk  to  return,  but  the  train  did  not  pass 
through ;  and  at  the  place  where  it  stopped  the  station-clerk  de- 
manded 2s.  6d.  more,  saying  he  should  not  have  taken  that  train, 
payment  being  refused,  the  superintendent  took  the  plaintiff  into 
custody.  The  plaintiff's  attorney  having  written  the  secretary  of 
the  company,  asking  compensation,  he  requested  to  be  furnished 
with  the  date  of  the  transaction,  and  promised  to  make  inquiries. 
He  also  stated  verbally  that  it  was  an  awkward  business,  and  the 
blame  would  fall  upon  the  station-clerk  who  gave  the  plaintiff  the 
false  information,  and  offered  to  return  the  2s.  Qd.  It  was  held 
that,  as  there  was  no  evidence  of  the  authority  of  the  defendants 
to  make  the  arrest,  and  none  of  their  having  expressly  or  im- 
pliedly authorized  or  ratified  it,  it  must  be  regarded  as  the  mere 
tortious  act  of  the  servant,  for  which  he  alone  was  responsible. 

6  Boston  &  Lowell  Railway  Co.  v.  Proctor,  1  Allen,  2G7. 

7  Beebe  v.  Ayres,  28  Barb.  275.- 

8  Roe  v.  Birkenhead,  Lancashire,  and  Cheshire  Junction  Railw.,  7  Eng.  L.  & 
Eq.  546  ;  s.  c.  6  Railw.  C.  795.  And  it  has  been  held  that  a  steamboat  proprie- 
tor might  exclude  one  from  his  boat,  while  employed  in  carrying  passengers,  if 
such  person  was  the  agent  of  a  rival  line  of  stages  to  that  which,  by  contract 
with  the  proprietor,  carried  in  connection  with  his  boats,  the  plaintiff's  object 
being,  at  the  time,  to  solicit  passengers  to  go  by  the  rival  line  of  stages  ;  and  the 
jury  having  found  that  the  contract  was  bond  fide  and  reasonable,  and  not  en- 
tered into  for  the  purpose  of  an  oppressive  monopoly,  and  that  the  regulation 
excluding  plaintiff  was '  necessary  in  order  to  carry  the  contract  into  effect. 
Jencks  v.  Coleman,  2  Sumner,  221.  But  a  contract  not  to  carry  passengers 
coming  by  a  particular  line  will  not  excuse  the  carrier  from  carrying  such  pas- 
senger.    Bennet  v.  Dutton,  10  N.  H.  R.  481. 

*33 


102  BY-LAWS   AND   STATUTES.  §  28. 

6.  But  in  a  somewhat  similar  case,9  in  the  Exchequer  Cham- 
ber, -where  the  plaintiff  below  had  been  taken  into  custody  by  a 
railway  inspector  of  the  defendants,  charged  with  having  no 
ticket,  refusing  to  pay  fare,  intoxication,  and  assaulting  the  in- 
spector, at  the  hearing  before  the  magistrate,  the  solicitor  of  the 
company  attended  to  conduct  the  proceedings ;  and  it  was  held 
that  such  attendance  was  no  ratification  by  the  company,  it  not 
appearing  that  the  facts  were  known  to  the  company.  These 
cases  afford  more  latitude  for  corporations  to  escape  from  lia- 
bility for  the  acts  of  their  agents  and  servants,  while  employed 
in  the  prosecution  of  their  business,  than  is  common  in  this 
country.10 

7.  But  there  are  many  cases  in  this  country  where  it  has 
been  held  that  trespass  will  not  lie  against  a  corporation  for  the 
act  of  their  agents ; n  but  this  is  not  the  prevailing  rule  here, 
where  the  servant  acts  within  the  apparent  scope  of  his  authori- 
ty, and  where  his  acts  would  bind  the  principal,  being  a  natural 
person. 

8.  An  English  railway  company 12  having  power  by  statute  to 
*  make  by-laws  which  were  to  be  painted  upon  a  board  and  hung 
up  at  the  stations,  and  to  be  binding  upon  all  parties,  made, 
among  others,  a  by-law  that  "  first-class  passengers  shall  be 
allowed  one  hundred  and  twelve  pounds,  and  second-class  pas- 
sengers fifty-six  pounds  luggage  each,  and  that  the  company  will 
not  be  responsible  for  the  care  of  the  same  unless  booked  and 
paid  for  accordingly."  It  did  not  appear  that  the  plaintiff  knew 
of  the  by-law,  or  that  it  had  been  posted  up  as  required.  The 
plaintiff  became  a  passenger,  and  gave  his  luggage  to  the  ser- 

9  The  Eastern  Counties  Railway  v.  Broom,  2  Eng.  L.  &  Eq.  406 ;  s.  c.  6 
Railw.  C.  743. 

10  Post,  §  225  and  notes.  See,  also,  post,  §  160,  169.  And  in  Coppin  v. 
Braithwaite,  8  Jurist,  875,  it  is  said  to  have  been  ruled  by  Rolfe,  B.,  at  Nisi 
Prius,  that  a  carrier  having  received  a  pickpocket  as  a  passenger  on  board  his 
vessel,  and  taken  his  fare,  he  cannot  put  him  on  shore  at  any  intermediate  place, 
so  long  as  he  is  guilty  of  no  impropriety. 

11  Philadelphia  G.  &  N.  Railw.  Co.  v.  Wilt,  4  Wharton,  143  ;  s.  c.  2  Am. 
Railw.  C.  251 ;  Orr  v.  Bank  of  U.  States,  1  Ohio,  36  ;  Foote  v.  City  of  Cincin- 
nati, 9  Ohio,  31.  Per  Comstock  and  Brown,  JJ.,  in  Hibbard  v.  N.  Y.  &  Erie 
KauV.  Co.,  15  N.  Y.  Court  of  App.  455. 

12  Great  Western  R.  v.  Goodman,  1 1  Eng.  L.  &  Eq.  546. 

*34 


§  28.  BY-LAWS   AS   TO   PASSENGERS.  103 

vants  of  the  company,  and  it  had  been  stolen.  It  was  held  that 
the  company  were  liable,  unless  they  showed  the  by-law  hung 
up  at  the  stations,  as  required  by  the  statute,  or  else  brought 
home  to  the  knowledge  of  the  plaintiff. 

9.  A  by-law  excluding  merchandise  from  the  passenger-trains, 
and  confining  its  transportation  to  the  freight-trains,  was  held 
reasonable.  The  company  are  not  bound  to  carry  a  passenger 
daily  upon  his  paying  fare,  when  his  trunk,  or  trunks,  contain 
merchandise,  money,  and  other  valuable  matter  known  as  "  ex- 
press matter."  13 

10.  In  a  very  recent  case  u  in  Connecticut,  it  was  held,  by  a 
divided  court,  that  where  a  railway  company  established  and 
gave  notice  of  a  discrimination  of  five  cents  between  fares  paid 
in  the  cars  and  at  the  stations,  the  regulation  was  valid,  and 
that  where  a  passenger  refused  to  pay  the  additional  five  cents 
in  the  cars,  the  conductor  might  lawfully  put  him  out  of  the  cars, 
using  no  unnecessary  force.  Upon  the  trial  of  an  action  for  such 
expulsion,  it  was  held  that  the  plaintiff  was  not  entitled  to  re- 
cover upon  proof,  that  he  went  to  the  ticket-office  of  the  com- 
pany a  reasonable  time  before  the  train  left,  to  procure  a  ticket ; 
that  the  office  was  closed,  and  so  remained  till  the  train  departed, 
and  that  he  so  informed  the  conductor,  before  his  expulsion  from 
the  cars. 

13  Merrihew  v.  Milwaukie  &  Mississippi  R.  5  Law  Reg.  364. 

14  Crocker  v.  New  London,  Willimantic  &  Palmer  Railw.,  24  Conn.  R.  249. 
The  court  were  so  nearly  equally  divided  in  the  decision  of  this  case,  that  it  can- 
not be  regarded  as  much  authority,  in  itself.  The  leading  propositions  in  the 
text  were  maintained,  by  the  Chief  Justice  and  one  other  judge,  and  dissented 
from  by  two  other  judges. 

The  only  point  of  doubt  seems  to  be  the  duty  of  the  company,  in  making  such 
discrimination,  to  give  reasonable  opportunity  to  passengers  to  obtain  tickets,  at 
the  lowest  rate  of  fare,  which  seems  just  and  reasonable,  and  in  accordance,  we 
believe,  with  the  generally  received  opinion  upon  the  subject,  and  the  one  we 
should  have  been  inclined  to  adopt.  In  Hilliard  v.  Goold,  34  N.  H.  R.  230,  it 
was  held,  that  a  uniform  discrimination  between  fares  paid  in  the  cars,  and  at 
the  stations,  not  exceeding  five  cents,  was  reasonable  and  legal,  and  a  passenger 
who  had  not  procured  a  ticket,  and  refused  to  pay  the  additional  five  cents  de- 
manded of  him,  for  fare  paid  in  the  cars,  was  liable  to  be  expelled.  Chicago, 
Burlington,  &  Quincy  Railw.  v.  Parks,  18  Illinois  R.  460.  And  it  is  here  held  that 
where  the  passenger  only  pays  from  station  to  station,  the  additional  five  cents 
may  be  required  at  each  payment. 


104  BY-LAWS  AND   STATUTES.  §  28. 

*  The  following  propositions  are  maintained  in  the  opinion  of 
the  court :  — 

1.  That  the  defendants,  as  common  carriers,  were  under  no 
legal  obligation  to  furnish  tickets,  or  to  carry  passengers  for  less 
than  the  sum  demanded,  if  the  fare  was  paid  in  the  cars. 

2.  That  the  plaintiff's  claim  rested  solely  upon  the  assump- 
tion, that  the  defendants  had  undertaken  to  carry  for  the  less 
sum,  on  certain  conditions,  which  they  had  themselves  defeated. 

3.  That  the  regulation  did  not  constitute  a  contract,  but  a  mere 
proposal,  which  they  might  suspend,  or  withdraw  at  any  time. 

4.  That  such  proposal  was  withdrawn  by  closing  the  defend- 
ant's office,  and  the  retirement  of  their  agent  therefrom. 

5.  The  proposition  being  withdrawn,  the  parties  were  in  the 
same  condition  as  before  it  was  made ;  the  defendants  continu- 
ing common  carriers  were  bound  to  carry  the  plaintiff  for  the 
usual  fare,  paid  in  the  cars,  and  not  otherwise. 

6.  That  the  plaintiff,  refusing  to  pay  such  fare,  was  properly 
removed  from  the  cars. 

It  was  further  held  by  all  the  judges  that  if  the  plaintiff  was 
wrongfully  removed  from  the  cars,  he  might  lawfully  re-enter 
them,  and  if  in  attempting  to  do  so  he  received  the  injury  com- 
plained of,  he  was  entitled  to  recover,  unless  he  was  himself 
guilty  of  some  want  of  care,  which  produced,  or  essentially  con- 
tributed to  produce,  the  injury. 

But  if  the  expulsion  was  lawful,  or  if  the  plaintiff  was  guilty 
of  want  of  care,  as  stated,  he  could  not  recover. 

The  majority  of  the  court  also  held,  that  if  any  of  the  defend- 
ant's employees,  which  the  conductor  called  to  his  aid,  in  putting 
and  keeping  the  plaintiff  off  the  cars,  intentionally  kicked  the 
plaintiff  in  his  face,  without  the  knowledge  or  direction  of  the 
conductor,  the  defendants  are  not  liable  for  the  act,  in  trespass. 
But  the  more  reasonable  view  in  regard  to  the  mode  of  enforcing 
a  discrimination  between  fares  paid  in  the  cars  and  at  the  sta- 
tions is,  that  such  a  regulation,  however  proper  in  itself,  cannot 
legally  be  enforced  by  the  company  unless  they  have  afforded 
every  proper  and  reasonable  facility  to  the  passenger  for  procur- 
ing his  ticket  at  the  station.15 

15  St.  Louis  &  C.  Railw.  v.  Dalby,  19  111.  R.  353. 
*35 


§  28.  BY-LAWS   AS  TO   PASSENGERS.  105 

11.  There  is  no  question  upon  general  principles,  in  an  action, 
or  indictment,  against  the  conductor  of  a  railway  train,  for  un- 
lawfully expelling  a  passenger,  where  the  evidence  shows  a  right 
to  make  the  expulsion,  the  conductor  may  nevertheless  become 
liable  for  the  manner  of  doing  it.  This  is  a  question  to  be  de- 
termined by  the  jury,  and  cannot  ordinarily  be  decided  by  the 
court,  as  matter  of  law.  If  there  be  an  excess  of  force,  or  it  be 
applied  in  an  unreasonable  and  improper  manner,  the  conductor 
is  liable  for  such  excess,  to  respond  in  damages,  to  the  party,  and 
also  to  public  prosecution,  for  a  breach  of  the  peace.16 

12.  The  authority  of  the  conductor  of  a  railway  train,  or  of 
any  other  servant  of  the  company,  to  enforce  their  regulations, 
does  not  depend  upon  the  formal  mode  of  his  appointment,  but 
upon  the  fact  of  his  being  employed  at  the  time  in  the  particular 
office.16 

13.  In  a  late  English  case,17  where  the  railway  company  had 
established  a  by-law  requiring  all  passengers  to  purchase  tickets 
before  entering  the  cars,  and  to  show  the  tickets  when  required 
so  to  do,  and  to  deliver  them  up,  on  request,  before  leaving  the 
company's  premises,  and  the  plaintiff  took  tickets  for  himself  and 
three  boys,  and  three  horses,  by  a  certain  train,  which  was'  af- 
terwards divided  by  the  company's  servants  into  two  parts,  one 
being  composed  of  passenger  carriages  and  the  other  of  horse 
boxes ;  and  the  plaintiff  retained  all  the  tickets  and  travelled 
by  the  first-mentioned  portion  of  the  train,  so  that  the  boys,  who 
were  left  to  go  in  the  other  portion  of  the  train,  were  unable  to 
produce  their  tickets  when  requested,  and  were  accordingly  ex- 
cluded by  the  company's  servants  from  entering  the  horse  boxes; 
it  was  held  a  breach  of  contract  by  the  company,  for  which  they 
were  responsible. 

16  HiUiard  v.  Goold,  34  New  H.  R.  230.  State  v.  Ross,  2  Dutcher,  224.  In 
this  last  case  the  principal  evidence  of  excess  was,  that  the  conductor  kicked  a 
passenger  who,  in  a  state  of  intoxication,  persisted  in  attempting  to  get  upon  the 
train,  and  the  court  held  the  conviction  proper. 

17  Jennings  v.  Great  Western  Railw.  Co.,  12  Jur.  N.  S.  331. 


106  CAPITAL   STOCK.  —  LIMITATIONS.  §29. 


*CHAPTER    VII. 

CAPITAL    STOCK. 

SECTION    I. 

Limitations. 

1.  General  rights  of  shareholders.  I  3.   Cannot  mortgage,  unless  on  special  license 

2.  Capital  stock  not  the  limit  of  property.  of  the  legislature. 

§  29.  1.  All  joint-stock  companies  are  allowed  to  raise  a  cer- 
tain amount,  and  sometimes  an  indefinite  amount  of  capital,  by 
the  subscription  of  the  members  ;  the  corporation,  in  fact,  gener- 
ally consisting  of  the  contributors  of  stock,  and  their  assignees, 
which  is  divided  into  shares,  transferable  according  to  the  by- 
laws and  charter  of  the  corporation,  entitling  the  owner,  for  the 
time  being,  to  the  rights  of  voting,  either  in  person  or  by  proxy, 
as  a  general  thing,  and  to  a  participation  in  the  profits  of  the 
enterprise.1 

2.  The  capital  stock  of  a  corporation  is  not  necessarily  the 
limit  of  its  property.2  It  is  not  uncommon  for  charters  of  stock 
companies  to  contain  restrictions  and  limitations  in  regard  to 
their  right  or  capacity  to  hold  real  estate,  and  sometimes  even  in 
regard  to  personal  estate. 

3.  But  railway  companies,  being  created  for  the  purpose  of 
carrying  into  effect  a  definite  enterprise,  must  almost  of  necessity 
have  the  power  to  issue  sufficient  stock  to  accomplish  the  under- 
taking, or  to  raise  the  requisite  funds  in  some  other  mode,  as  by 
loan  and  mortgage.  And  where  the  stock  is  limited,  and  often 
where  it  is  not,  these  corporations  have  been  compelled,  either  to 
abandon  the  enterprise,  or  to  resort  to  loans  and  mortgages, 
which  *  being  in  some  sense  a  desperate  mode  of  raising  funds, 
as  long  as  the  company  have  power  to  issue  stock,  could  only  be 

1  Walford  on  Railways,  252  ;  Penobscot  Railw.  v.  White,  41  Me.  R  512. 

2  Barry  v.  Merchants'  Exchange  Co.,  1  Sandford's  Ch.  280  ;  South  Bay 
Meadow-Dam  Co.  v.  Gray,  30  Maine  R.  547. 

*36,37 


§  30.      CONDITIONS   WHICH  PUBLIC   AUTHORITIES   MAY  ENFORCE.     107 

justified,  ordinarily,  by  a  strict  and  fatal  necessity,  and  by  permis- 
sion of  the  legislature,  as  is  generally  considered.3 


SECTION    II. 
Conditions  Precedent,  which  the  Public  Authorities  may  enforce. 

1.  Stock,  if  limited,  must  all  be  subscribed.     \       2.  Payments  at  time  of  subscription. 

§  30.  1.  If,  by  the  charter,  the  stock  of  the  company  is  divided 
into  a  certain  number  of  shares,  that  number  cannot  be  changed 
by  act  of  the  company.1  And  if  the  charter  either  expressly  or 
by  legal  intendment  require,  that  a  certain  number  of  shares  be 
subscribed  before  any  assessment  is  laid,  no  valid  assessment  can 
be  laid  until  that  number  be  bond  fide  subscribed,  and  if  it  is 
attempted  the  company  may  be  dissolved.2 

2.  And  where  the  general  law  of  the  state,  or  the  particular 
charter,  requires  a  given  proportion  of  subscriptions  to  be  paid 
in  at  the  time  of  subscription,  this  condition  must  be  complied 
with,  or  the  subscriptions  will  not  fulfil  the  condition  precedent.3 

3  Post,  §  181,  234,  235. 

1  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23. 

2  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23  ;  Central  Turnpike  Co.  v.  Valen- 
tine, 10  Pick.  142.  Where  the  capital  stock  consists  of  a  given  number  of 
shares  of  given  amount,  no  valid  assessment  for  the  general  purposes  of  the  en- 
terprise can  be  made  until  the  whole  number  of  shares  is  subscribed  ;  and  if  any 
of  the  subscriptions  be  made  upon  conditions  precedent,  it  must  be  shown  that 
such  conditions  have  been  waived  or  performed.  10  Pick.  142.  But  assess- 
ments to  defray  the  expenses  of  the  incorporation,  organization,  and  preliminary 
examination,  similar  to  those  under  the  provisional  companies  in  England,  have 
been  allowed  to  be  made  before  the  stock  of  the  company  is  all  subscribed.  6 
Pick.  23.  And  in  a  suit  upon  subscriptions  to  stock  in  a  corporation,  where  by 
the  charter  a  given  amount  of  stock  is  required  to  be  subscribed  before  the  cor- 
poration can  go  into  operation,  it  is  necessary  to  allege  the  latter  fact,  and  the 
omission  will  be  ground  of  error,  although  the  question  is  not  raised  at  the  trial. 
Fry's  exr.  v.  Lex.  &  Big  S.  Railw.,  2  Met.  (Ky.)  314. 

3  Highland  Turnpike  Co.  v.  M'Kean,  11  Johns.  98,  1  Caines's  Cas.  85. 
But  see  post,  §  51,  where  it  will  appear,  that  although  the  public,  or  the  other 
shareholders,  may  insist  upon  the  payment,  in  money,  of  the  sums  required  by 
the  charter  to  be  paid  at  the  time  of  subscription,  this  is  a  condition  which  can- 
not be  taken  advantage  of  by  the  subscriber,  as  between  himself  and  the  compa- 


108 


CAPITAL   STOCK. 


§31. 


Where  *  the  charter  of  a  railway  company  provided  that  the 
whole  capital  stock  should  be  subscribed,  before  any  of  the  pow- 
ers and  provisions  of  the  charter  should  be  put  in  force,  and  the 
company  niade  a  call  upon  the  shares  before  the  subscriptions 
were  completed,  and  commenced  an  action  after  they  were  so,  it 
was  held  the  action  could  not  be  maintained,  the  completion  of 
the  subscription  being  necessary  to  enable  the  company  to  make 
the  call.4 

SECTION    III. 

Shares  Personal  Estate. 


1 .  Railway  shares  personal  estate  at  common 

law. 

2.  Not  an  interest  growing  out  of  land,  or 

goods,  wares,  and  merchandise. 


3.  Early  cases  treated  such  shares  as  real 
estate. 


§  31.  1.  The  shares  of  railway  companies  are  now  almost 
universally  regarded  as  personal  estate.  The  English  statute  so 
declares  them.  Hence  the  transfer  of  such  shares  is  not  required 
to  be  in  writing,  nor  are  they  regarded  as  coming  within  the 
acts  of  mortmain.1     This  has  been  repeatedly  decided  in  regard 

ny,  in  an  action  for  calls.  And  it  has  been  held,  that  the  stock  subscriptions  to 
a  railway,  with  banking  privileges,  cannot  be  paid  in  bills  of  the  company,  but 
must  all  be  paid  in  specie.  King  v.  Elliott,  5  Sm.  &  M.  428.  The  charter  in 
this  case  required  $  20  paid  in  specie  at  the  time  of  subscription.  Subscriptions 
in  the  name  of  infants,  unless  some  one  is  responsible  for  payment  of  calls,  are 
not  a  compliance  with  the  charter.  Roman  v.  Fry,  5  J.  J.  Marshall,  634.  But 
if  the  corporation  acquiesce  in  such  subscriptions,  they  cannot  afterwards  object. 
Creed  v.  Lancaster  Bank,  1  Ohio  St.  R.  1.  See  Beach  v.  Smith,  28  Barb. 
254.  See,  also,  East  Pascagoula  Hotel  Co.  v.  West,  13  La.  Ann.  545  ;  Piscata- 
qua  Ferry  Co.  v.  Jones,  39  N.  H.  R.  491 ;  Fiser  v.  Miss.  &  Tenn.  Railw.,  32 
Miss.  R.  359  ;  Hayne  v.  Beauchamp,  5  Sm.  &  Mar.  515,  537  ;  Lewis  v.  Robert- 
son, 13  Id.  558  ;  Barrington  v.  Miss.  Central  Railw.,  32  Miss.  R.  763  ;  Miss.  & 
Tenn.  Railw.  v.  Harris,  36  Miss.  R.  17. 

4  Norwich  and  Lowestoft  Navigation  Co.  v.  Theobald,  1  M.  &  M.  151.  It  is 
not  competent  for  all  the  shareholders  to  reduce  the  amount  of  the  capital  stock, 
by  mutual  consent,  below  that  fixed  in  the  charter.  If  that  is  attempted,  it  will 
be  enjoined  upon  a  bill  brought  by  the  company  against  the  shareholders  and 
projectors.     Society  of  Practical  Knowledge  v.  Abbott,  2  Beavan,  559. 

1  Ashton  v.  Lord  Longdale,  4  Eng.  L.  &  Eq.  80.  This  case  extends  the 
*38 


§  31.  SHARES  PERSONAL  ESTATE.  109 

to  shares  of  canal  and  dock  companies,  and  bonds  secured  by  an 
assignment  of  the  rates.2  Such  shares  may  be  sold  by  parol 
where  the  contract  is  executory.3  *And  it  would  seem  that  the 
same  view  would  prevail  in  the  English  courts,  even  where  there 
is  no  statutory  declaration  that  the  shares  shall  be  deemed  per- 
sonal estate.3 

2.  And  the  sale  of  foreign  railway  shares  standing  in  the  name 
of  another  person,  and  a  guarantee  that  such  person  shall  deliver, 
need  not  be  in  writing,  either  as  having  respect  to  an  interest 
growing  out  of  land,  or  as  an  undertaking  for  another,  the  un- 
dertaking being  original  and  not  collateral.4  Railway  shares 
are  neither  an  interest  in  land,  nor  goods,  wares,  and  merchan- 
dise, within  the  statute  of  frauds.5 

3.  Some  of  the  early  English  cases  treated  the  shares  of  incor- 
porated companies  as  real  estate,  where  the  interest  grew  out  of 
the  use  or  improvement  of  real  estate,6  and  a  similar  view  is 
taken  in  some  of  the  American  states.7  But  the  settled  rule 
upon  the  subject  now,  both  in  England  and  this  country,  is  that 
before  stated.8     This  has  often  been  decided  in  recent  analogous 

same  rule  to  the  debentures  of  such  companies.  Neither  is  railway  scrip  with- 
in the  Mortmain  Act.  But  mortgages  given  by  a  railway  company  of  the  un- 
dertaking and  tolls  may  be  within  the  act.  So  also  shares  in  a  bank  secured  by 
mortgages.  Myers  v.  Perigal,  16  Simons,  533;  The  King  v.  Chipping  Norton, 
5  East,  239. 

2  Sparling  v.  Parker,  9  Beavan,  450 ;  Thompson  v.  Thompson,  1  Coll.  C.  C. 
381 ;  Hilton  v.  Giraud,  1  De  G.  &  S.  183;  Walker  v.  Milne,  11  Beavan,  507. 
But  see  Tomlinson  v.  Tomlinson,  9  Id.  459. 

3  Bradley  v.  Holdsworth,  3  M.  &  W.  422 ;  Bligh  v.  Brent,  2  Y.  &  Coll.  268, 
294.  This  is  an  elaborate  case  establishing  the  proposition  that  the  shares  in  a 
corporation,  whose  works  are  real  estate,  are  nevertheless  personal  estate,  and 
this  upon  general  principles  Of  the  common  law. 

i  Hargreaves  v.  Parsons,  13  M.  &  W.  561. 

5  Humble  v.  Mitchell,  2  Railw.  C.  70;  s.  c.  11  Ad.  &  Ellis,  205.  See  also 
Duncuft  v.  Albrecht,  12  Simons,  189;  Tempest  v.  Kilner,  3  C.  B.  249;  Knight 
v.  Barber,  16  M.  &  W.  Q6. 

6  Drybutter  v.  Bartholomew,  2  Peere  Wins.  127;  Townsend  v.  Ash,  3  Atk. 
336  ;  Buckerridge  v.  Ingram,  2  Vesey,  jr.  652. 

7  Welles  v.  Cowles,  2  Conn.  R.  56  7.  See  also  Cape  Sable  Company's  case, 
3  Bland's  Ch.  606,  670;  Binney's  case,  2  Id.  99 ;  Price  v.  Price,  6  Dana,  107; 
Meason's  Estate,  4  Watts,  341. 

8  Walford,  254;  Ante,  §  31,  and  cases  cited  in  notes  1,  2,  3,  and  4;  Tippets 
v.  Walker,  4  Mass.  B.  595,  596,  opinion  of  Parsons,  Ch.  J.     Speaking  of  a 

*39 


110  CAPITAL   STOCK.  §  31. 

cases.  The  foe  of  land  being  in  the  corporation,  vests  no  inter- 
est of  the  nature  of  real  estate  in  the  separate  shareholders.9 

turnpike  company,  he  says:  "When  the  road  is  made,  the  corporation  is  enti- 
tled to  demand  and  receive  a  toll  of  travellers  for  the  use  of  it,  in  trust  for  the 
members  of  the  corporation,  in  proportion  to  their  respective  shares.  The 
property  of  every  member  is  the  right  to  receive  a  proportional  part  of  the 
tolls,  which  is  considered  as  personal  estate." 

In  Howe  v.  Starkweather,  1 7  Mass.  R.  240,  243,  Parker,  Ch.  J.  says :  "  Shares 
in  a  turnpike  or  other  incorporated  company,  are  not  chattels.  They  have  more 
resemblance  to  choses  in  action,  being  merely  evidence  of  property." 

In  1  Greenleaf's  Cruise,  39,  40,  the  subject  is  very  fully  and  fairly  presented, 
and  the  following  conclusion  arrived  at,  in  regard  to  the  state  of  the  law  in  the 
United  States :  "  Latterly  it  has  been  thought  that  railway  shares  were  more 
properly  to  be  regarded  as  personal  estate." 

The  same  view  is  held  in  Bank  of  Waltham  v.  Waltham,  10  Met.  334 ;  Hutch- 
ins,  Adm'r,  v.  The  State  Bank,  12  Met.  421;  Denton  v.  Livingston,  9  Johns. 
96,  100;  Planters'  &  Merchants'  Bank  v.  Leavens,  4  Alabama  R.  753;  Union 
Bank  of  Tennessee  v.  The  State,  9  Yerger,  490;  Brightwell  v.  Mallory,  10  Id. 
196;  Heart  v.  State  Bank,  2  Dev.  Ch.  Ill ;  State  v.  Franklin  Bank,  10  Ohio, 
91,  97;  Slaymaker  *  v.  Gettysburg  Bank,  10  Penn.  St.,  373;  Gilpin  v.  Howell, 
5  Penn.  St.,  41,  57;  Johns  v.  Johns,  1  Ohio  St.  R.  350;  Arnold  v.  Ruggles, 
1  Rhode  Island  Rep.  165. 

A  distinction  has  sometimes  been  attempted  between  the  shares  of  a  bank  or 
manufacturing  corporation,  and  a  turnpike  or  railway,  in  regard  to  their  partak- 
ing of  the  realty.  But  the  slightest  examination  will  satisfy  us  that  there  is  no 
substantial  ground  for  any  such  distinction.  The  one  may  be  more  intimately 
connected,  in  its  existence  or  operation,  with  real  estate,  but  both  must  have 
some  connection,  more  or  less  intimate,  and  in  both  the  shareholders  have  no 
title  to  the  land,  that  residing  altogether  in  the  corporation,  while  the  shares  are 
merely  a  ri^ht  to  the  ultimate  profits  of  the  company,  and  are  as  really  and 
unquestionably  choses  in  action  as  promissory  notes,  bills  of  exchange,  or  bonds 
and  mortgages,  of  natural  or  corporate  persons.  Wheelock  v.  Moulton,  15 
Verm.  R.  519;  Isham  v.  Ben.  Iron  Co.  19  Verm.  R.  230.  See  also  Johns  v. 
Johns,  supra. 

9  Ackland  v.  Lewis,  1  K.  &  G.  334,  Registration  cases. 
*40 


§32. 


RESTRICTIONS   UPON   TRANSFER. 


Ill 


CHAPTER    VIII 


TRANSFER   OF   SHARES. 


SECTION    I. 


Restrictions  upon  Transfer. 


1 .  Express  provisions  of  charter  to  be  ob- 

served. 

2.  If  not    made    exclusive,    held    directory 

merely. 

3.  Unusual  and  inconvenient  restrictions  void. 


4.  But  a  lien  upon  stock  for  the  indebtedness 

of  the  owner  is  valid. 

5.  But  such  lien  is  not  implied. 

6.  Where  transfer  is  ivrongfully  refused,  ven- 

dee may  recover  value  of  the  company. 


§  32.  1.  We  cannot  here  attempt  to  show  in  detail  all  the  in- 
cidents of  the  transfer  of  stock  in  railway  companies.  It  is  trans- 
ferable much  the  same  as  other  personal  property,  excepting  only 
that  any  express  provision  of  the  charter  upon  that  subject  must 
be  regarded  as  of  paramount  obligation.1 

1  Strictly  speaking,  perhaps  no  shares  in  any  joint  enterprise  are  transferable 
so  as  to  introduce  the  assignee  into  the  association,  as  a  member,  unless  it  be 
joint-stock  companies  and  corporations,  formed  in  pursuance  of  legislative  au- 
thority. And  in  the  case  of  legislative  incorporations,  the  shares  are  transfer- 
able only  under  the  charter,  and  according  to  its  terms.  Duvergier  v.  Fellows, 
5  Bing.  248,  267,  opinion  of  Best,  Ch.  J.  A  mere  partnership  cannot  be  so 
constituted,  as  to  release  the  assignor  of  a  share  from  all  liability  to  third  per- 
sons, and  introduce  the  assignee  at  once,  and  completely,  into  his  place.  Blun- 
dell  v.  Winsor,  8  Simons,  601,  opinion  of  Shad-well,  V.  C. ;  Jackson  v.  Cocker, 
4  Beavan,  59,  63. 

In  the  English  courts  it  has  been  held,  that  where  the  charter  of  a  corpora- 
tion or  the  deed  of  settlement  required  the  assent  of  the  directors  to  complete 
the  title  of  the  purchaser  of  shares,  that  it  was  the  duty  of  the  seller  to  procure 
this  assent,  in  order  to  comply  with  his  contract  to  convey.  Wilkinson  v. 
Lloyd,  7  Q.  B.  27;  Bosanquet  v.  Shortridge,  4  Exch.  699. 

And  all  corporations  may,  in  self-defence,  require  all  calls  made  upon  their 
stock  to  be  paid,  before  they  will  substitute  the  name  of  the  purchaser  of  shares 
upon  their  books,  for  the  original  subscriber,  as  after  this  substitution  they  have 
no  longer  any  claim  upon  such  subscriber,  and  it  would  be  liable  to  defeat  many 
public  enterprises  of  moment,  and  after  large  expenditures  had  been  incurred, 
if  the  subscribers  could,  at  will,  relieve  themselves  from  all  liability  to  pay  calls, 

*41 


112  TRANSFER   OF   SIIARES.  §  32. 

*  2.  In  many  cases,  however,  where  the  charter  only  provides 
a  mode  of  transfer,  and  does  not  declare  this  mode  exclusive  of 

by  transferring  their  shares  to  irresponsible  persons.  Hall  v.  Norfolk  Estuary- 
Co.,  8  Eng.  L.  &  Eq.  351.  But  the  assignee  of  a  share  may  always  insist 
upon  becoming  a  member  upon  paying  all  calls. 

Questions  of  some  difficulty  often  arise  between  shareholders  and  the  com- 
pany, in  regard  to  an  informal  transfer  having  been  confirmed  by  acquiescence. 
In  Shortridge  v.  Bosanquet,  17  Eng.  L.  &  Eq.  331,  and  in  ex  parte  Bagge,  4 
Eng.  L.  &  Eq.  72,  it  is  held  that  if  the  entry  of  the  transfer  is  made  upon  the 
books  of  the  company,  and  especially  where  the  company  have  dealt  with  the 
shareholder  claiming  under  the  transfer,  they  cannot  treat  the  transaction  as 
void,  for  any  want  of  form  in  the  transfer,  though  in  a  matter  specially  required 
by  the  charter  and  not  immaterial,  but  which  their  own  irregularities  had  ren- 
dered it  impossible  to  observe.  And  where  the  secretary  of  a  joint-stock  com- 
pany fraudulently  transferred  shares,  and  the  proprietor  of  the  shares  treated 
the  transaction  as  being  valid  against  the  transferree,  but  filed  a  bill  against  the 
company  for  damages,  it  was  held  he  was  not  entitled  to  relief.  Duncan  v. 
Luntley,  2  McN.  &  Gord.  30 ;  s.  C.  2  Hall  &  Twells,  78. 

In  ex  parte  Straffon's  Executors,  10  Eng.  L.  &  Eq.  275,  the  lord  chancel- 
lor, St.  Leonards,  thus  characterizes  these  transactions,  which,  although  informal 
in  some  respects,  are  constantly  acquiesced  in  by  both  parties,  until  there  comes 
some  crisis  in  the  affairs  of  the  company,  perhaps,  or  the  transferree  becomes 
insolvent.  "  There  would  be  no  safety  for  mankind  in  dealings  of  this  kind,  ex- 
tensive as  they  are,  with  so  much  money  embarked  in  them,  if  the  courts  had 
ever  held,  as  they  never  have  held,  that  every  minute  circumstance  must  be 
obeyed,  which  the  directors  themselves  ought  to  have  obeyed ;  but  if  they  disre- 
gard them,  if  the  shareholders  do  not  call  them  to  account  for  doing  so,  if  a 
course  of  action  has  been  adopted  in  the  particular  company,  without  complaint, 
although  they  may  have  arrived  at  making  a  man  a  shareholder,  by  what  I 
should  call  a  short  cut,  instead  of  going  through  all  the  necessary  formalities, 
they  may  be  perfectly  good  as  between  parties  thus  dealing  with  the  directors, 
and  the  directors  themselves,  so  as  to  bind  them." 

And  in  Bargate  v.  Shortridge,  31  Eng.  L.  &  Eq.  44  (May,  1855),  in  the 
House  of  Lords,  upon  elaborate  argument  and  great  consideration,  it  seems  to 
have  been  definitively  settled  in  England,  that  where  the  deed  of  a  joint-stock 
company  required  the  certificate  of  consent  of  three  directors  to  the  transfer  of 
the  shares  of  the  company,  and  in  practice  this  had  never  been  given,  but,  for 
ten  years,  transfers  had  continually  been  made  upon  the  verbal  assent  of  the 
managing  director  upon  the  spot,  and  about  nine  tenths  of  the  original  shares 
had  been  transferred  in  this  manner,  and  S.  having  transferred  his  shares  in  the 
same  mode  to  T.,  and  his  name  having  been  entered  upon  the  books  of  the  com- 
pany, they  could  not  afterwards  refuse  to  regard  T.  as  a  member. 

And  in  such  case,  where  the  directors  afterwards  cancelled  the  name  of  T.  in 
their  share  register-book,  on  the  ground  that  the  consent  of  the  directors  was 
wanting,  it  was  held  that  S.  had  ceased  to  be  a  member  of  the  company,  and 
*42 


§  32.  RESTRICTIONS  UPON   TRANSFER.  113 

all  others,  the  provision  has  been  regarded  as  merely  directory, 
and  *  not  indispensable  to  the  vesting  of  title  in  the  assignee. 
And  this  has  generally  been  so  regarded,  where  the  express 
provisions,  in  relation  to  the  transfer  of  shares,  exist  only  in  the 
by-laws  of  the  corporation. 

3.  And  any  unusual  restriction  in  the  by-laws  of  a  corporation 
upon  the  transfer  of  stock,  as  that  it  shall  be  made  only  upon  the 
books  of  the  corporation,  in  person,  or  by  attorney,  and  with  the 
consent  of  the  president,  or  other  officers  of  the  corporation,  has 
been  regarded  as  void,  as  an  unreasonable  restraint  upon  trade,2 

was  entitled  to  an  injunction  against  a  scire  facias  prayed  out  against  him  by  a 
creditor  of  the  company,  as  a  shareholder. 

It  was  said  by  Lord  St.  Leonards,  who  delivered  the  leading  opinion  :  "  Where 
the  directors  of  a  company  do  acts  in  a  matter  in  which  they  have  no  authority, 
such  acts  are  altogether  null  and  void.  But  where  the  acts  are  within  their 
power  and  duty,  and  are  either  omitted  or  improperly  done,  and  thereby  third 
parties  are  damaged,  neither  a  court  of  law  nor  of  equity  will  allow  the  com- 
pany to  take  advantage  of  their  neglect." 

This,  it  seems  to  us,  is  a  sound  distinction,  and  one  which  will  have  an  impor- 
tant bearing  upon  the  fraudulent  over-issue  of  stock  by  the  directors  of  a  com- 
pany whose  capital  is  limited,  and  all  issued  and  in  the  hands  of  boiia  fide  own- 
ers. This  is  the  same  case  in  4  Exch.  699.  See  also  Taylor  v.  Hughes,  2  Jones 
&  La  Touche,  24 ;  Humble  v.  Langston,  2  Railw.  C.  533 ;  Ex  parte  Cockburn, 
1  Eng.  L.  &  Eq.  139. 

But  where'  the  charter,  or  the  general  law,  requires  all  debts  of  the  owner  to 
be  paid  the  company  before  transfer  of  shares,  the  company  are  not  bound  to 
accept  a  transfer  otherwise  made.     Reg.  v.  Wing,  33  Eng.  L.  &  Eq.  80. 

2  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90 ;  Quiner  v.  Marblehead  Ins.  Co., 
10  Mass.  R.  476  ;  Noyes  v.  Spalding,  27  Vt.  R.  421  ;  Bates  v.  New  York  Ins. 
Co.,  3  Johns.  Cas.  238  ;  Chouteau  Spring  Co.  v.  Harris,  20  Missouri  R.  382. 
In  this  last  case  the  charter  of  the  company  provided  that  the  stock  might  be 
"  transferred  on  the  books  of  the  company,"  and  the  company  were  authorized 
"  to  regulate  the  transfer  of  stock,"  by  by-laws.  And  a  provision  in  the  charter 
authorized  the  company,  in  certain  cases,  to  make  assessments  of  stockholders 
beyond  their  shares  of  stock. 

It  was  held  that  no  such  assessment  could  be  made  on  a  party,  after  he  had 
ceased  to  be  a  member,  by  a  transfer  of  his  stock.  That  the  power  "  to  regulate 
the  transfer  "  did  not  include  the  power  to  restrain  transfers,  or  to  prescribe  to 
whom  they  might  be  made,  but  merely  to  prescribe  the  formalities  to  be  observed 
in  making  them,  and  that  the  company  could  not  prevent  a  party  from  selling 
his  stock,  even  to  an  insolvent  person. 

That  an  assignment  "  upon  the  books  of  the  company  "  was  sufficient  to  effect 
a  change  of  ownership,  without  taking  out  a  new  certificate  in  the  name  of  the 

VOL.  I.  8  *43 


114  TRANSFER   OF   SHARES.  §  32. 

unless  as  a  provision  to  secure  the  indebtedness  of  shareholders. 
*  In  such  case  it  is  sometimes  said  the  assignee  need  only  make 
his  right  known  to  the  company,  and  require  the  transfer  entered 
upon  the  books,  and  his  title  becomes  perfected.3 

4.  But  if  the  former  owner  was  indebted  to  the  corporation, 
and  the  charter  required  all  such  indebtedness  to  be  liquidated, 
before  transfer  of  stock,  such  indebtedness  will  remain  a  lien 
upon  the  stock,  in  the  hands  of  the  assignee.4     And  where  the 

assignee ;  and  that  any  transfer  in  writing  was  valid  against  the  company,  if, 
being  notified,  they  refused  to  allow  it  to  be  made  according  to  their  by-laws. 

And  in  Dauchy  v.  Brown,  24  Vt.  R.  197,  which  was  an  action  against  stock- 
holders, upon  the  proper  debt  of  the  corporation,  where  the  charter  provided, 
that  the  persons  and  property  of  the  corporation  shall  be  holden  to  pay  its  debts, 
and  that  any  execution,  which  should  issue  against  the  corporation,  might  be 
levied  upon  the  person  or  property  of  any  individual  thereof,  it  was  held,  that 
the  stockholders  were  only  liable,  in  default  of  the  corporation,  and  that  judg- 
ment should  first  be  recovered  against  the  corporation,  and  the  statute  remedy 
strictly  pursued.  See,  also,  in  regard  to  the  remedy  against  stockholders,  who 
are  by  statute  made  personally  liable,  Southmayd  v.  Russ,  3  Conn.  R.  52  ;  Middle- 
town  Bank  v.  Magill,  5  Conn.  R.  28  ;  Child  v.  Coffin,  1 7  Mass.  R.  64  ;  Roman  v. 
Fry,  5  J.  J.  Marshall,  634. 

s  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90  ;  United  States  v.  Vaughan,  3  Bin- 
ney,  394  ;  Ellis  v.  Essex  Bridge  Co.,  2  Pick.  243  ;  Chester  Glass  Co.  v.  Dewey, 
16  Mass.  R.  94  ;  Agricultural  Bank  v.  Burr,  11  Shepley,  256  ;  Same  v.  Wilson, 
id.  273. 

4  Union  Bank  v.  Laird,  2  Wheaton,  390 ;  Bank  of  Utica  v.  Smalley,  2 
Co  wen,  770  ;  Rogers  v.  Huntingdon  Bank,  12  Serg.  &  R.  77  ;  Downer  v.  Bank 
of  Zanesville,  Wright,  477  ;  Farmers'  Bank  of  Maryland  v.  Iglehart,  6  Gill, 
50 ;  Hall  v.  U.  S.  Insurance  Co.,  5  Gill,  484.  See  Angell  &  Ames,  §  355 
and  note.  In  Marlborough  M.  Co.  v.  Smith,  2  Conn.  R.  579,  it  was  said  the 
transfer  of  shares  to  constitute  the  assignee  a  stockholder  must  be  in  strict  con- 
formity to  the  charter  and  by-laws.  And  in  the  recent  case  of  Pittsburg  & 
Steubenville  Railw.  v.  Clark,  9  Am.  Railway  Times,  51,  Ch.  J.  Lewis  goes  into 
an  elaborate  review  of  the  cases  to  show,  that  under  the  Pennsylvania  statutes, 
which  provide,  that  no  transfer  of  shares  shall  be  made  while  the  holder  remains 
indebted  to  the  company,  except  by  consent  of  the  board  of  directors,  and  no 
transfer  shall  discharge  any  liabilities  before  incurred,  that  both  the  stock  and 
the  holder  remain  liable  for  all  calls  due  before  the  transfer,  and  that  the  original 
subscriber,  who  promised  to  pay  fifty  dollars  on  a  share,  is  indebted  to  the  com- 
pany, before  calls  made,  within  the  meaning  of  the  statute  ;  and  even  where  the 
transfer  is  made  with  the  consent  of  the  directors,  will  remain  liable  until  all 
calls  are  paid,  notwithstanding  the  statute  subjects  the  transferee  also  to  a  like 
liability.  The  following  extract  from  the  opinion  of  the  learned  judge  places 
the  points  decided  in  a  clear  light :  "  Is  an  original  subscriber,  who  has  bound 
*44 


§  32.  RESTRICTIONS   UPON   TRANSFER.  115 

charter  of  the  company  requires  the  payment  of  all  sums  due 
before  registering  a  transfer,  this  will  embrace  all  calls  made 
and  which  are  payable  at  the  date  of  the  transfer.5 

himself  in  writing  to  pay  fifty  dollars  per  share,  but  who  has  only  paid  five  dol- 
lars per  share  on  his  subscription,  '  indebted  '  to  the  company  within  the  mean- 
ing of  the  act  ?  Why  should  this  question  receive  a  negative  answer  ?  His  en- 
gagement to  pay  money  is  as  much  a  debt  as  any  other  engagement  for  the  pay- 
ment of  money.  A  debt  may  be  contracted  for  stock  in  a  railroad  company  as 
readily  as  for  anything  else.  It  is  true  that  the  debt  is  payable  by  instalments 
when  required  from  time  to  time  by  the  directors.  But  it  is  none  the  less  a  debt 
on  that  account.  It  is  debitum  in  presenti  solcendum  in  futuro.  It  is  a  present 
debt  payable  at  some  future  day.  It  is  well  settled  that  the  lien  given  by  stat- 
ute to  a  corporation,  upon  the  shares  of  stockholders  '  indebted'  to  it,  extends  to 
all  debts,  whether  payable  presently  or  at  a  future  time,  except  where  the  stat- 
ute limits  the  lien  to  debts  actually  due  and  payable,  and  that  a  stockholder  in- 
debted to  the  corporation,  although  the  debt  may  not  be  due,  cannot  transfer  his 
stock  without  the  consent  of  the  corporation.  Rogers  v.  Huntingdon,  12  S.  & 
R.  77  ;  Grant  v.  Mechanics'  Bank  of  Philadelphia,  15  S.  &  R.  140  ;  Sewell  v. 
Lancaster  Bank,  1 7  S.  &  R.  285.     It  is  very  clear  that  the  defendants,  at  the 

5  Orpen  ex  parte,  9  Jur.  N.  S.  615.  This  question  is  elaborately  discussed  in 
a  recent  case  in  Maryland,  with  the  following  results :  — 

The  charter  of  a  bank  provided  that  its  shares  of  stock  shall  be  transferable 
upon  the  books  of  the  corporation  only  according  to  such  rules  as  shall  be  estab- 
lished by  the  president  and  directors  ;  but  all  debts  actually  due  and  payable  to 
the  corporation  by  a  stockholder,  requesting  a  transfer,  must  be  satisfied  before 
such  transfer  shall  be  made,  unless  the  president  and  directors  shall  direct  to  the 
contrary. 

Held,  1.  That  this  lien  on  the  stock  is  not  waived  by  the  form  of  a  certificate  for 
stock  declaring  that  the  stockholder  "  is  entitled  to shares  of  stock  transfer- 
able only  at  said  bank  personally  or  by  attorney  on  surrender  of  this  certificate." 

2.  The  assignee  of  a  stockholder  takes  the  equitable  assignment  subject  to  the 
rights  of  the  bank  against  the  stockholder,  under  its  charter,  of  which  he  is  bound 
to  take  notice. 

3.  This  lien  attaches  to  balances  due  the  bank  by  the  stockholder,  for  over- 
drafts on  checks,  but  not  to  notes  or  bills  on  which  the  stockholder  may  be  a 
party,  as  maker  or  endorser,  and  not  due  at  the  time  the  transfer  is  demanded. 

4.  The  words  "  debts  actually  due  and  payable,"  imply  more  than  mere  in- 
debtedness ;  the  indebtedness  contemplated  is  only  a  debitum  solvendum  in  pre- 
senti, not  in  futuro. 

5.  Where  an  assignee  demands  a  transfer,  but  refuses  to  pay  the  debts  then 
due  the  bank  by  the  stockholder,  and  afterwards  makes  a  second  demand,  when 
other  notes  of  the  stockholder  had  become  due  and  payable,  he  cannot  obtain  a 
transfer  without  paying  all  the  debts  due  at  the  time  of  the  last  demand.  Reese 
&  Fisher  v.  Bank  of  Commerce,  14  Md.  R.  271. 


116  TRANSFER   OF   SHARES.  §  32. 

5.  A  corporation  has  no  implied  lien  upon  stock  for  the  lia- 
bilities of  the  stockholders  to  the  company.6 

time  of  the  alleged  transfer  of  their  stock,  were  '  indebted '  to  the  company  to  an 
amount  nearly  equal  to  the  whole  of  their  subscription.  They  had,  therefore,  no 
ri'dit  whatever  to  transfer  their  stock  without  the  consent  of  the  board  of  direc- 
tors. It  is  true  that  as  between  them  and  the  purchaser,  if  the  latter  thought 
proper  to  contract  for  a  contingent  or  uncertain  interest,  the  transfer  might  be 
good  for  some  purposes.  8  Pick.  90  ;  9  Pick.  202  ;  2  Cowen,  770.  But  it  passes 
no  title  to  the  stock,  and  confers  no  '  privileges,  immunities,  or  franchises '  what- 
ever upon  the  purchaser.  The  consent  of  the  board  of  directors  is  of  itself  the 
originating  act  in  the  change  of  title,  and  does  not  merely  operate  to  perfect  the 
conveyance  previously  begun.  Marlborough  Man.  Co.  v.  Smith,  2  Conn.  R. 
579  ;  Northop  v.  Newtown  &  Bridgeport  Turnpike  Co.,  3.  Conn.  R.  544  ;  Ox- 
ford Turnpike  Co.  v.  Bunnell,  6  Conn.  R.  552.  So  long  as  the  stock  remains 
unpaid,  the  corporation  has  a  right  to  refuse  to  receive  new  members  in  place  of 
the  original  adventurers.  Until  the  stock  is  fully  paid  up,  and  the  stockholders 
otherwise  free  from  debt  to  the  company,  they  have  no  right  whatever  to  intro- 
duce strangers  into  the  company  in  their  places.  A  right  which  depends  upon 
the  consent  of  others  is  no  right  at  all.  The  transfer  to  Mr.  Stanton  was,  there- 
fore, of  itself,  a  nullity.  An  attempt  was  made  to  give  it  vitality  by  parol  evi- 
dence, from  which  the  consent  of  the  board  of  directors  was  to  be  inferred  by  the 
jury.  But  there  is  no  evidence  tending  to  show  that  the  question  was  ever  pre- 
sented to  the  consideration  of  the  board,  or  that  any  action  was  taken  by  the 
board  in  regard  to  the  transfer.  In  ordinary  business  transactions  between  a 
corporation  and  strangers,  the  authority  of  agents  and  the  existence  of  contracts 
may  be  implied  from  acquiescence  and  other  circumstances.  So  where  the  as- 
sent of  the  board  is  required  by  a  by-law  only,  the  execution  of  the  by-law  may 
be  modified  by  the  practice  of  the  corporation.  Ins.  Co.  v.  Smith,  1  Jones,  126. 
But  when  the  act  of  incorporation  grants  a  power,  the  mode  prescribed  by 
the  statute  for  its  exercise  must  be  strictly  pursued.  5  Barb.  S.  C.  R.  613,  614  ; 
2  Cranch,  127.  The  question  here  is  whether  one  member  of  a  corporation 
has  been  legally  substituted  for  another.  The  title  of  the  original  stockholder 
was  established  by  written  evidence,  and  could  have  no  legal  existence  with- 
out it.  Thames  Tunnel  v.  Sheldon,  6  B.  &  C.  341.  The  title  of  the  substitute 
must  be  shown  by  evidence  of  the  same  character.  It  is  the  duty  of  the  direc- 
tors to  keep  minutes  of  their  proceedings,  and  the  proper  evidence  of  their  as- 

6  Mass.  Iron  Co.  v.  Hooper,  7  Cush.  183 ;  Heart  v.  State  Bank,  2  Dev.  Ch. 
Ill  ;  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90,  and  cases  cited  supra,  note  2. 
But  dividends  due  and  unpaid  may  be  said  to  be  a  fund,  in  the  hands  of  the 
corporation,  which  they  are  not  obliged  to  pay  to  the  assignee  of  the  stock, 
until  their  debts  from  the  assignor  are  liquidated.  Dividends  are  strictly  due 
only  to  the  assignor,  and  would  not  probably  pass  by  a  mere  sale  of  the  stock, 
unless  there  were  some  special  ground  for  giving  the  transfer  of  the  stock  that 
operation. 


§33. 


CONTRACTS   TO   TRANSFER   STOCK. 


117 


6.  And  when  the  company  wrongfully  refuse  to  record  trans- 
fers of  shares  on  their  books,  the  vendee  may  recover  the  price  of 
such  shares,  the  company  having  caused  them  to  be  sold,  as  the 
property  of  the  vendor.6 

♦SECTION    II. 
Contracts  to  transfer  Stock. 


1.  Transfer  under  English  statutes.    Regis- 

tered companies. 

2.  Contracts  to  transfer  stock  valid,  where 

bona,  fide. 

3.  Vendor  must  have  the  stock,  when  due. 

n.  3.    Vendor  must  procure  the  consent  of  di- 
rectors, where  requisite. 

4.  Force  of  usages  of  stock-exchange. 

5.  Company  will  reform  their  registry  at  its 

peril. 


6.  1 0.   Company  may  compel  one  to  accept 

shares  on  contract. 

7.  Stock  standing  in  joint  names  belongs  to 

survivors. 

8.  Mode  and  effect  of  correcting  registry. 

9.  If  the  company  vary  the  contract,  spe- 

cific performance  will  be  denied. 

10.  Closing  contracts  by  offer  and  acceptance. 

11.  Form   of  transfer.     Two  may  join   in 

one  transfer. 


§  33.  1.    Questions  often  arise  in  regard  to  transfers  of  stock 

sent  to  a  transfer  is  a  recorded  resolution  adopted  when  the  board  was  in  session. 
Where  the  transfer  is  made  by  a  director,  it  ought  further  to  appear  that  the  res- 
olution of  assent  was  carried  without  his  vote.  If  the  resolution  was  adopted 
and  entered  on  the  minutes,  the  loss  or  destruction  of  the  entry  might  be  sup- 
plied by  parol  proof.  But  in  no  other  case  can  parol  evidence  be  received  to 
show  that  an  assignee  has  been  admitted  as  a  member  of  the  corporation  in  the 
place  of  the  assignor.  There  was  no  legal  evidence  of  the  assent  of  the  board  of 
directors  to  the  transfer,  and  therefore  no  legal  evidence  of  a  valid  transfer  of 
the  stock.  If  there  had  been,  we  do  not  see  how  the  defendants  can  claim  to  be 
discharged  by  it  from  '  liabilities '  previously  incurred.  Their  subscription  to 
the  stock  of  the  company  created  a  liability  to  be  called  upon  for  payment  in  such 
instalments  as  the  directors  required.  Conceding  that  it  was  not  an  obligation 
for  present  payment,  and  supposing,  for  a  moment,  that  it  was  not  strictly  a  debt, 
it  was  certainly  a  '  liability,'  which  is  a  word  of  more  extensive  signification  than 
'  debt.'  The  act  of  assembly  is  express  in  its  direction  that  a  transfer,  even  with 
the  assent  of  the  board,  shall  not  have  the  effect  of  discharging  any  liabilities  or 
penalties  heretofore  incurred  by  the  owner  of  the  stock.  We  see  no  reason  for 
restricting  this  proviso  to  '  liabilities '  which  had  become  due  and  payable  before 
the  transfer.  It  is  sufficient  to  bring  a  '  liability  '  within  the  proviso  that  it  had 
been  '  incurred  '  by  the  owner  before  the  transfer.  It  is  not  necessary  that  it 
should  also  have  become  due  and  payable."  The  same  principle  was  reaffirmed 
in  Graff's  Exr.  v.  Pittsburg  &  Steubenville  Railw.,  11  Am.  Railway  Times, 
No.  14. 

*45 


118  TRANSFER   OF   SHARES.  §  33. 

in  incorporated  companies,  as  to  the  quantity  of  interest  con- 
veyed, the  title  of  the  person  making  the  conveyance,  and  many 
other  incidents.  The  English  statutes  in  regard  to  the  regis- 
tration of  railway  companies  are  not  intended  to  affect  the  prop- 
erty in  the  shares,1  and  a  transfer  is  valid,  although  made  before 
the  registration.2 

2.  It  would  seem,  too,  that  a  contract  to  transfer  stock  in  rail- 
way companies,  at  a  future  time,  which  the  party  neither  has, 
nor  is  about  to  have,  but  expects  to  purchase  in  the  market,  for 
the  purpose  of  fulfilling  his  undertaking,  is  nevertheless  a  valid 
contract,  and  not  illegal,  or  against  the  policy  of  the  law,3  and 
that  the  intimation  of  Lord  Tenterdenf  that  such  contracts  were 
illegal,  and  not  to  be  encouraged  by  the  law  or  its  ministers,  is 

1  The  London  &  Brighton  Railw.  Co.  v.  Fairclough,  2  Railw.  Cases,  544  ; 
s.  c.  2  M.  &  G.  674. 

s  The  Sheffield,  Ashton-under-Lyne,  &  Manchester  Railw.  Co.  v.  Woodcock, 
2  Railw.  Cases,  522  ;  s.  c.  7  M.  &  W.  574. 

3  Hibblewhite  v.  M'Morine,  5  M.  &  W.  462.  Mr.  Walford,  in  his  treatise,  256 
and  note,  intimates,  that  the  law  of  France  regards  this  class  of  contracts  as  ille- 
gal, and  cites  Hannuic  v.  Goldner,  11  M.  &  W.  849,  in  confirmation.  But  the 
case  does  not  expressly  decide  the  point.  That  was  pleaded,  and  the  court  held 
the  plea  bad,  as  amounting  to  the  general  issue,  and  the  party  had  leave  to 
amend.  Perhaps  it  is  charitable,  both  to  the  pleader  and  to  the  country,  to  sup- 
pose such  is  the  law  there,  as  Mr.  "Walford  seems  to  have  done.  But  where  the 
deed  of  settlement  requires  the  assent  of  the  directors  to  a  transfer  of  shares, 
and  the  vendor  did  not  obtain  it,  and  in  the  mean  time  the  price  of  shares  fell 
in  the  market,  held  the  vendee  might  recover  back  his  money.  Wilkinson  v. 
Lloyd,  7  Q.  B.  27.  But  where  the  plaintiffs  covenanted  to  subscribe  for  stock 
in  a  railway,  and  pay  ten  per  cent,  thereon,  and  then  transfer  it  to  defendant, 
who  agreed  thereupon  to  pay  the  residue  and  save  the  plaintiffs  harmless,  and 
the  plaintiffs  subscribed  for  the  stock  and  paid  the  ten  per  cent. ;  but  the  by- 
laws of  the  company  provided  for  the  transfer  of  the  stock  on  the  books  of  the 
company  only  after  the  payment  of  thirty  per  cent,  of  its  amount,  unless  by  the 
consent  of  the  directors,  which  they  refused  to  give,  in  this  case,  and  the  plain- 
tiffs tendered  the  defendant  an  instrument  whereby  they  assigned  and  trans- 
ferred the  stock  and  constituted  him  their  attorney  to  transfer  the  same  on  the 
books  of  the  company,  which  was  refused  as  not  being  a  compliance  with  the 
contract :  It  was  held,  in  an  action  to  recover  damages  for  the  breach  of  the 
contract,  that  the  plaintiffs  had  complied  with  their  covenant,  and  might  recover 
not  the  difference  between  the  value  of  the  stock  at  the  time  of  refusal,  and  the 
sum  due  upon  the  subscription,  but  the  whole  sum  due  and  interest.  Orr  v. 
Bigelow,  4  Kernan,  556. 

4  In  Bryan  v.  Lewis;  Ry.  &  M.  386,  and  in  Lorymer  v.  Smith,  1  B.  &  C.  1. 


§  33.  CONTRACTS   TO   TRANSFER   STOCK.  119 

not  to  be  regarded,  at  this  time,  as  sound  law,  however  good 
sense,  or  good  morality,  it  may  seem  to  be. 

3.  It  is  clearly  not  a  stock-jobbing  transaction  within  the  Eng- 
*  lish  statute.5   But  to  the  performance  of  such  a  contract  it  seems 

•    to  be  requisite,  that  the  seller  should  bond  fide  procure  the  stock, 
by  the  time  appointed  for  the  transfer.6 

4.  The  English  reports,  both  in  law  and  equity,  and  especially 
the  more  recent  ones,  abound  in  cases  more  or  less  affecting  trans- 
fers of  shares  on  the  stock-exchange,  and  the  practice  and  law 
governing  transactions  between  brokers.  These  rules  are  allowed 
to  have  great  weight  in  fixing  the  construction  and  effect  of  con- 
tracts made  through  the  instrumentality  of  brokers.  In  the  sale 
of  shares  in  companies  requiring  the  consent  of  the  directors  or 
of  the  company  itself  to  the  transfer,  it  is  not  understood,  accord- 
ing to  these  rules,  that  the  vendor  or  his  broker  undertakes  to 
procure  that  consent,  and  if  he  does  all  that  is  requisite  to 
effect  a  transfer  of  the  equitable  interest  of  the  property,  and 

5  Hewitt  v.  Price,  4  M.  &  G.  355 ;  Mortimer  v.  M'Callan,  6M.&W.  58. 

6  Hibblewhite  v.  M'Morine,  2  Railw.  C.  51  -66  ;  s.  c.  6  M.  &  W.  200.  The  com- 
ments of  Isham,  J.,  in  Noyes  v.  Spaulding,  27  Vt.  R.  420,  429,  may  be  regarded, 
perhaps,  as  giving  the  present  state  of  the  English  law  upon  this  subject.  "  Con- 
tracts for  the  sale  of  stock  of  this  character  on  time  are  valid  at  common  law, 
and  can  be  enforced  by  action.  The  statute  7  Geo.  2,  ch.  8,  made  perpetual  by 
10  Geo.  2,  ch.  8,  has  rendered  some  contracts  of  that  character  illegal.  Tbey 
are  rendered  void  so  far  as  the  public  stocks  of  that  country  are  concerned,  when 
the  seller  had  no  stock  at  the  time  of  making  the  contract,  and  none  was  ever 
intended  to  be  transferred  by  the  parties,  but  their  intention  was  to  pay  the  dif- 
ference merely  that  may  exist  between  the  market  value  of  the  stock  at  the  time  of 
the  transfer,  and  the  price  agreed  to  be  paid.  Such  contracts  are  rendered  void 
by  that  statute,  and  are  treated  as  wagering  contracts;  'the  seller  virtually  bet- 
ting that  the  stock  will  fall,  the  buyer  that  it  will  rise.'  Chitty  on  Bills,  112,  note 
(w).  It  has  been  held,  that  railroad  stock  is  not  within  the  act.  Hewitt  v.  Price, 
4  M.  &  G.  355;  s.  c.  3  Railw.  C.  175;  Fisher  v.  Price,  11  Beav.  194.  In 
the  case  of  Mortimer  v.  M'Callan,  6  M.  &  W.    70,  Lord  Abinger  observed, 

'  that  the  act  was  made  for  the  purpose  of  preventing  what  is  declared  to  be 
illegal  trafficking  in  the  funds  by  selling  fictitious  stock  merely  by  way  of  differ- 
ences ;  but  it  never  was  intended  to  affect  bond  fide  sales  of  stock.'  Elsworth 
v.  Cole,  2  M.  &  W.  31 ;  2  Kent,  Comm.  468,  note  (b).  In  the  case  of  Grize- 
wood  v.  Blane,  20  Eng.  L.  &  Eq.  290,  it  was  held,  that  a  colorable  contract 
for  the  sale  of  railroad  shares,  where  no  transfer  is  intended,  but  merely  '  differ- 
ences] amounting  to  the  rise  or  fall  of  the  market,  is  gaming  within  the  8  and 
9  Vict.  ch.  109,  §  18;  s.  c.  11  Common  Bench,  538." 

*46 


120  TRANSFER   OF   SHARES.  §  33. 

there  is  no  obstruction  to  the  vendee  in  obtaining  the  registration 
of  such  transfer,  by  taking  the  prescribed  steps,  the  transfer  will 
be  regarded  as  complete.7 

5.  Where  the  company  assume  to  erase  transfers  from  their 
books  on  the  alleged  ground  that  they  are  merely  colorable,  ,and  ■ 
made  for  the  purpose  of  injuriously  affecting  the  interest  of  the 
company  or  others,  they  assume  the  burden  of  showing  such  to  be 
the  facts  ;  and  the  transferees  will  be  entitled  to  a  mandamus  to 
compel  the  company  to  restore  their  names  to  the  registry  as 
the  proprietors.8 

6.  It  is  competent  for  the  company  to  maintain  a  bill  in  equity 
against  one  upon  an  agreement  to  accept  shares,  although  no  writ- 
ing has  been  signed  by  the  defendant  according  to  the  statute  re- 
quiring the  acceptance  to  be  in  writing.  The  contract  may  be 
enforced,  as  an  agreement  to  «do  what  the  statute  requires,  and 
the  decree  will  settle  the  question  whether  the  defendant  or  some 
other  one  is  the  lawful  holder  of  the  shares  in  question.9 

7.  Where  stock  is  allowed  to  stand  in  the  joint  names  of  two 
persons,  they  will  be  regarded  as  joint  tenants,  unless  something 
is  shown  to  the  contrary,  and  the  company  may  treat  the  sur- 
vivor as  the  owner  of  the  whole.10 

8.  A  court  will  not  interfere  to  compel  a  joint-stock  company 
to  correct  their  registry  by  removing  one  name  and  inserting 
another  while  an  action  at  law  is  pending  in  regard  to  the  same 
matter.11  Where  the  registry  is  altered  under  a  misapprehen- 
sion as  to  the  genuineness  of  a  transfer  it  will  not  have  the  effect 
to  transfer  the  shares.12     Specific  performance  of  a  contract  to 

7  Stray  v.  Russell,  5  Jur.  N.  S.  1295;  s.  c.  affirmed  in  Exch.  Chamb.  6  Id. 
168.  See  also  Field  v.  Lelean,  6  H.  &  N.  617,  where  a  custom  of  the  stock  ex- 
change in  regard  to  a  particular  class  of  shares,  not  to  deliver  them  on  contracts 
of  sale  until  the  payment  of  the  price,  was  held  operative. 

8  Ward  v.  South  Eastern  Railw.,  6  Jur.  N.  S.  890. 

9  N.  B.  &  Canada  L.  Co.  v.  Muggeridge,  4  Drew.  686 ;  Bog  Lead  Co.  v. 
Montague,  10  C.  B.  N.  S.  481 ;  s.  c.  8-Jur.  N.  S.  310. 

10  Garrick  v.  Taylor,  3  Law  T.  N.  S.  460.  And  this  will  be  so,  notwithstand- 
ing, by  the  rules  of  the  bank,  there  was  to  be  no  benefit  of  survivorship,  it  ap- 
pearing to  have  been  the  purpose  of  the  deceased  to  have  her  share  go  to  the 
survivor.  Garrick  v.  Taylor,  29  Beav.  79  ;  7  Jur.  N.  S.  116,  affirmed  by  Lords 
Justices,  10  W.  R.  49. 

11  Harris  ex  parte,  29  Law  J.  Exch.  364 ;  s.  c.  5  H.  &  N.  809. 
18  Hare  v.  London  &  N.  W.  Railw.,  1  Johns.  Eng.  Ch.  722. 


§  33.  CONTRACTS   TO   TRANSFER   STOCK.  121 

sell  shares  will  be  decreed  in  equity,  notwithstanding  the  consti- 
tution of  the  company  provide  that  no  shares  shall  be  transferred 
except  in  such  mode  as  the  board  shall  approve,  and  the  board 
refuse  to  give  its  consent  to  the  transfer.13 

9.  If  the  company  in  their  notice  of  allotment  annex  a  condi- 
tion which  they  have  no  power  to  do,  it  will  be  regarded  as  such 
a  variation  of  the  contract  that  a  court  of  equity  will  not  inter- 
fere to  decree  specific  performance  of  the  original  contract.  As 
when  the  company  in  such  notice  require  the  allottee  to  sign  the 
deed  of  settlement  on  pain  of  forfeiture  of  the  shares,  when  the 
constitution  of  the  company  gave  no  such  power.14 

10.  The  learned  judge,  Lord  Chancellor  Westbury,  here  dis- 
cusses the  general  questions  involved,  and  concludes,  that  in 
general  the  court  will  specifically  enforce  a  contract  to  accept  of 
shares  in  a  joint-stock  company.  His  lordship  explains  much  at 
length  his  own  views  of  the  true  modus  operandi  in  effecting  con- 
tracts by  means  of  written  offers  and  acceptance,  and  concludes, 
very  justly,  we  think,  that  one  who  attempts  to  enforce  such  a 
contract  must  show  that  the  acceptance  on  his  part  was  prompt, 
simple,  and  unqualified  ;  and  that  where  new  conditions  are  made 
in  the  acceptance  the  contract  will  not  be  regarded  as  closed  un- 
til assent  is  given  by  the  other  party,  either  expressly  or  by  fair 
implication,  to  such  conditions. 

11.  The  transfer  of  shares  intended  to  be  recorded  on  the 
books  of  the  company  should  contain  nothing  but  the  transfer  of 
the  title.  And  where  there  are  shares  in  different  companies 
transferred  between  the  same  parties  at  the  same  time,  it  will  be 
more  convenient  to  have  a  separate  transfer  for  each  company.15 
But  as  to  the  mere  conveyance  of  title  between  the  parties,  one 
conveyance  is  sufficient.  And  it  is  held  even  that  two  different 
owners  may  join  in  one  conveyance  to  the  same  person.16 

13  Poole  v.  Middleton,  7  Jur.  N.  S.  1262. 

14  Oriental  I.  Steam  Co.  v.  Briggs,  8  Jur.  N.  S.  201. 

15  Lord  Campbell,  Ch.  J.,  in  Reg.  v.  General  Cemetery  Co.,  6  E.  &  B.  415, 
419  ;  Copeland  v.  North  Eastern  R.  Co'.,  Id.  277. 

16  Wills  v.  Bridge,  4  Excb.  193. 


122  TRANSFER   OF   SHARES.  §  34. 

SECTION    III. 
Intervening  Calls,  or  Assessments. 


1 .  Vendor  must  pay  calls,  if  that  is  requisite 

to  pass  title. 

2.  Generally  it  is  matter  of  construction,  and 

inference. 


n.  2.  Calls  paid  by  vendor  after  executing 
transfer. 


§34.  1.  It  has  been  said,  too,  that  the  contractor  to  transfer 
stock  must  see  to  it  that  all  calls  are  met,  up  to  the  time  of  the 
transfer,  as  in  general  the  charters  of  such  companies,  or  their 
by-laws,  prohibit  the  transfer  of  stock  while  calls  remain  unpaid.1 
But  we  have  seen  that  this  is  a  provision  for  the  protection  of 
the  *  company,  and  in  which  they  alone  are  interested,  and  which 
will  not  ordinarily  avoid  a  sale,  between  other  parties,  otherwise 
valid. 

2.  And  it  would  seem  that  the  question,  upon  which  party  the 
duty  to  pay  future  calls  shall  rest,  is  one  of  construction,  in  the 
absence  of  express  stipulation  ;  at  all  events,  one  of  intention. 
It  may  perhaps  be  safe  to  say  that  the  sale  of  stock,  in  the  pres- 
ent tense,  ordinarily  implies  that  it  is  free  from  incumbrance  of 
any  kind,  unless  there  is  some  exception  or  qualification  in  the 
contract.  And  that  may  be  the  common  presumption,  in  regard 
to  contracts  to  deliver  stock,  in  future.  But  in  the  latter  case  the 
presumption  is  not,  by  any  means,  of  so  conclusive  a  character 
as  in  the  former,  and  sometimes,  in  such  cases,  it  has  been  held 
not  incumbent  upon  the  seller  to  pay  intervening  calls.2 

1  Walford,  256,  257. 

2  Shaw  v.  Rowley,  5  Railw.  C.  47.  In  this  case  it  was  held  no  impediment  to 
the  seller's  readiness  to  convey  the  shares,  that  he  had  not  paid  an  intervening 
call,  as  he  might  do  it  at  the  moment  of  executing  the  transfer,  and  the  court 
say  the  call  was  ultimately  to  be  paid  by  the  purchaser. 

In  Humble  v.  Langston,  2  Railw.  C.  533,  it  is  decided,  that  upon  the  sale  and 
transfer  of  the  shares,  where  the  purchaser's  name  is  not  substituted,  on  the  reg- 
ister of  the  company,  for  that  of  the  seller,  but  the  stock  still  standing  in  his 
name,  he  is  thereby  subjected  to  the  payment  of  future  calls,  he  cannot  recover 
the  money  of  the  purchaser,  because  there  is  no  implied  contract  to  that  effect, 
resulting  from  the  transaction.  This  is  certainly  a  most  remarkable  decision,  and 
*47 


§  35.  TRANSFER  BY  DEED  IN  BLANK.  123 

*SECTION    IV. 
Transfer  by  Deed  in  Blank. 

1,  2.   Blank  transfer  formerly  held  invalid  in  I    3.  Rule  different  in  America. 
England. 

§  35.  1.  Ordinarily  the  transfer  of  stock,  or  a  contract  to  trans- 
fer, is  not  required  to  be  in  any  particular  form.     All  that  is 

it  is  something  of  a  task  to  be  able  to  read  the  opinion  of  the  court,  by  which 
this  result  is  reached,  with  tolerable  patience.  The  conclusion  is  certainly  not 
fortified  either  by  reason  or  analogy. 

And  in  the  Cheltenham  &  Great  W.  Union  Railw.  Co..  v.  Daniel,  2  Railw.  C. 
728,  it  is  decided,  that  the  purchaser  of  shares  may,  by  way  of  estoppel  in  pais, 
be  made  liable  for  calls,  before  his  name  is  actually  substituted  for  that  of  the 
seller  upon  the  register  of  shares.  If  so,  both  parties  are  liable  for  the  calls,  and 
the  seller,  while  his  name  remains  upon  the  register,  is  the  mere  surety  of  the 
purchaser,  as  to  future  calls.  And  what  is  a  more  natural  or  necessary  conclu- 
sion in  the  mind  of  any  one  having  the  common  sense  of  justice,  than  to  imply, 
that  while  the  purchaser  suffers  the  seller's  name  to  remain  upon  the  register, 
and  liable  to  the  payment  of  calls,  through  his  neglect,  he  does  impliedly  prom- 
ise to  indemnify  him  against  all  loss  on  that  account  ?  See  Burnett  v.  Lynch,  5 
B.  &  C.  589. 

But  the  case  of  Humble  v.  Langston  is  reaffirmed  in  the  subsequent  case  of 
Sayles  v.  Blane,  6  Railw.  C.  79.  These  cases  can  only  be  accounted  for,  upon 
the  principle  of  discouraging  blank  unregistered  transfers,  which  have  the  effect 
to  evade  the  stamp  duties.  Shelford,  108,  and  Report  on  Railw.  1839,  No.  517, 
p.  4. 

Since  writing  the  above  the  late  case  of  Walker  v.  Bartlett,  3G  Eng.  L.  &  Eq. 
368,  has  come  to  hand,  where  a  blank  transfer  seems  to  be  regarded  as  per- 
fectly valid,  and  that  the  transfer  in  this  mode  does  impose  upon  the  vendee  the 
duty  of  paying  calls  upon  the  shares,  while  they  remain  his  property.  We  may 
be  allowed  to  say,  that  this  result  of  the  English  decisions,  upon  this  subject,  is 
not  altogether  without  gratification,  as  the  former  decisions  had  so  effectually 
mystified  the  subject,  that  it  seemed  not  improbable  that  the  difficulty  of  com- 
prehending them  might  very  likely  be  ultimately  found  with  ourselves,  rather 
than  at  the  door  of  the  eminent  jurists,  who  have  so  long  clung  to  the  now  ac- 
knowledged inconsistency  of  Humble  v.  Langston,  which  pertinacity  in  error,  as 
a  general  thing,  is  far  more  uncommon  in  Westminster  Hall  than  with  courts  of 
less  experience. 

Men  of  the  learning  and  experience  of  the  English  judges,  generally  feel 

that  they  can  afford  to  acknowledge  their  common  share  of  human  fallibility, 

without  serious  prejudice. 

*48 


124  TRANSFER   OF   SHARES.  §  35. 

requisite,  is,  the  same  as  in  any  other  contract,  the  meeting  of 
the  minds  of  the  parties.  But  in  some  cases  the  shares  are,  by 
the  express  requirements  of  the  charter,  made  transferable  only, 
by  deed  executed  by  both  parties  to  the  transfer. 

2.  And  in  such  case  it  was  considered,  that  a  deed  executed 
by  the  seller,  with  a  blank  for  the  name  of  the  transferee,  was 
no  compliance  with  the  statute.1  The  opinion  of  the  court  seems 
to  rest  upon  the  early  cases,  in  which  it  is  held  that  the  party 
cannot  effectually  execute  a  deed,  leaving  such  important  blanks 
as  the  name  of  the  grantee,  or  obligee,  while  it  is  considered  that 
less  important  ones,  like  the  date,  etc.,  may  be  supplied,  after  the 
execution,  by  permission  of  the  party  executing  the  same.  This 
seems  to  have  been  the  undoubted  rule  of  the  English  law,  from 
the  authorities  cited,  in  the  last  case. 

3.  But  it  seems  to  be  rather  technical  than  substantial,  and  to 
found  itself  either  in  the  policy  of  the  stamp  duties,  or  the  supe- 
rior force  and  sacredness  of  contracts  by  deed,  both  of  which 
have  little  importance  in  this  country.  And  the  prevailing  cur- 
rent of  American  authority,  and  the  practical  instincts,  and 
business  experience  and  sense  of  our  people  are  undoubtedly 
otherwise. 

*  4.  There  is  no  good  reason  why  one  should  not  be  as  much 
bound  by  a  deed  executed  blank,  and  filled  according  to  his 
directions,  as  by  a  blank  acceptance  or  indorsement,  of  a  bill,  or 
note,  and  accordingly  we  find  a  large  number  of  decisions  of  the 
American  courts  leading  in  that  direction.2 

1  Hibblewhite  v.  M'Morine,  2  Railw.  C.  51 ;  s.  c.  6  M.  &  W.  200.  It  is  consid- 
ered that  two  or  more  several  owners  of  shares  may  join  in  one  deed  to  convey 
their  shares.  Wills  v.  Bridge,  4  Exch.  193;  Enthoven  v.  Hayle,  9  Eng.  L.  & 
Eq.  434.     See  ante,  §  34,  n.  2. 

2  Stahl  v.  Berger,  10  S.  &  R.  170;  Sigfried  v.  Levan,  6  Id.  308;  Wiley  v. 
Moor,  17  Id.  438;    Ogle  v.  Graham,  2  Penn.  R.  132;     Woolley  v.  Constant, 

4  Johns.  54,  60;  Ex  parte  Kerwin,  8  Cow.  118;  Boardman  v.  Gore  et  al., 
15  Mass.  R.  331. 

And  the  following  certainly  incline  in  the  same  direction.     Smith  v.  Crocker, 

5  Mass.  R.  538,  and  the  opinion  of  Parsons,  Ch.  J. ;  Hunt  v.  Adams,  6  Id.  519 ; 
Warring  v.  Williams,  8  Pick.  326;  Adams  v..  Frye,  3  Met.  103;  Bank  of 
Commonwealth  v.  Curry*,  2  Dana,  142;  Bank  v.  McChord,  4  Id.  191  ;  Johnson 
v.  Bank  of  the  U.  States,  2  B.  Monroe,  310;  Camden  Bank  v.  Halls,  2  Green, 
583  ;  Duncan  v.  Hodges,  4  M'Cord,  239. 

*49 


§36. 


SALE  OF  SPURIOUS  SHARES. 


125 


SECTION    V 


Sale  of  spurious  Shares. 


1.  Vendor,  icho  acts  bona  fide,  must  refund 

money. 
3.  No  implied  warrant;/  in  such  case,  which 

will  entitle  the  vendee  to  special  damage. 


4.  Rule  of  the  stock-exchange,  made  after  the 
sale,  not  binding  upon  parties. 

n.  1.  Discussion  of  the  extent  of  implied  war- 
ranty. 


§  36.  1.  Where  one  employed  a  share-broker  to  sell  in  the 
market  what  purported  to  be  scrip  or  certificates  of  shares  in  a 
projected  railway  company,  which  subsequently  proved  to  have 
been  forged,  and  the  broker  paid  the  price  at  which  he  sold  them 
to  the  defendant,  but  being  called  upon  by  the  purchaser  to 
make  good  the  loss,  repaid  the  money,  and  a  further  sum,  accord- 
ing to  a  *  resolution  of  the  committee  of  the  stock-exchange,  as 
to  the  value  of  genuine  shares  in  the  same  railway  company, 
which  resolution  was  passed  after  the  sale  of  the  spurious  shares. 
The  defendant  declining  to  pay  this  further  sum,  the  broker 
brought  an  action,  claiming  to  recover,  as  upon  a  warranty,  that 
the  shares  were  genuine,  with  a  count  for  money  paid.1 

,  In  the  London  &  Brighton  Rallw.  Co.  v.  Fairclough,  2  Railw.  C.  544,  the 
deed  of  transfer  where  one  name  was  first  inserted,  as  transferree,  and  subse- 
quently that  erased,  and  another  inserted,  and  the  deed  re-executed,  by  the 
vendor,  was  held  void,  because  it  had  not  been  restamped.     Post,  §  239,  241. 

An  auctioneer,  who  sells  shares  at  public  auction  without  disclosing  the  name 
of  his  principal,  makes  himself  personally  responsible  for  the  fulfilment  of  the 
contract  of  sale.     Franklyn  v.  Lamond,  4  C.  B.  637  ;  Hodges  on  Railways,  119. 

But  where  one  borrowed  money,  and  deposited  certificates  of  railway  shares, 
with  blank  assignments  upon  them,  as  security,  and  the  blanks  were  not  filled  up 
till  the  shareholder' became  bankrupt,  it  was  held  that  the  depositary  had  a  lien 
upon  the  shares,  for  money  advanced  by  him,  or  paid  on  calls  upon  the  shares. 
Dobson  sx  parte,  2  Mont.  3  D.  &  De  G.  685.  And  railway  bonds  issued  with  the 
name  of  the  obligee  blank,  were  held  negotiable  in  that  form,  although  not  in 
terms  negotiable  ;  and  that  any  holder  for  value,  before  the  blanks  were  filled, 
might  maintain  an  action  in  his  own  name  against  the  company.  Chapin  v. 
Vermont  &  Mass.  Railw.,  8  Gray,  575.  See,  also,  White  v.  Vt.  &  Mass.  Railw.,' 
21  How.  (U.  S.)  575. 

\  Hodges,  4th  ed.  (1865).  This  writer  thus  defines  the  rule.  "If  a  share- 
broker,  directed  to  buy  shares,  buys  what  is  ordinarily  bought  and  sold  in  the 
stock-market  as  shares,  he  has  fulfilled  his  commission,  and  cannot  be  made  re- 

*50 


126  TRANSFER   OF   SHARES.  §  36. 

2.  Upon  the  latter  count  the  defendant  paid  into  court  the 
money  received  upon  the  original  sale,  with  interest. 

3.  It  was  held,  the  plaintiff  could  not  recover  upon  the  ground 
of  the  warranty,  there  being  no  promise,  express  or  implied,  that 
the  certificates  were  genuine  ;  and  that  under  the  other  count 
he  could  only  recover  the  money  paid  defendant. 

4.  It  was  also  held,  that  the  resolution  of  the  committee  of  the 
stock-exchange,  made  after  the  transaction  was  completed,  how- 
ever it  might  bind  the  members  of  that  body,  could  not  affect  the 
defendant.2 

sponsible  for  tlie  fraud  or  misconduct  of  parties,  who  may  have  issued  the  shares 
■without  authority.  There  is  no  warranty  or  undertaking,  on  the  part  of  the 
broker  employed  to  buy  shares  or  scrip,  that  the  article  which  merely  passes 
through  his  hands  is  anything  more  than  what  it  purports  on  its  face  to  be,  and 
what  it  is  generally  understood  to  be  in  the  market.  Addison  on  Cont.  5th  ed. 
191.  But  if  a  broker  sell  stock-shares  or  debentures  for  an  undisclosed  princi- 
pal, and  sign  the  sold  note,  he  is  responsible  for  any  loss  sustained  by  the  pur- 
chaser, through  the  fraud  of  the  undisclosed  principal,  although  the  purchaser 
knew  that  he  was  dealing  with  a  broker.  Royal  Exchange  Insurance  Co.  v. 
Moore,  11  Weekly  Rep.  592. 

We  know  of  no  good  reason  why  the  vendor  of  shares  in  a  joint-stock  com- 
pany should  not  be  held  responsible  for  the  genuineness  of  the  article  the  same 
as  any  other  vendor.  It  may  not  follow  that  either  of  the  brokers  of  the  con- 
tracting parties  could  be  so  held,  since,  in  general,  they  act  merely  in  a  repre- 
sentative capacity.  But  the  ultimate  vendor  must  be  responsible  upon  an 
implied  warranty  to  that  extent.  And  as  was  held,  in  the  last  case  cited,  if  the 
broker  withholds  the  name  of  his  principal  he  thereby  assumes  that  responsibil- 
ity, personally. 

2  Westropp  v.  Solomon,  8  C.  B.  345.  We  think  it  probable  that  the  cases, 
in  this  country,  would  be  regarded  as  favoring  the  view,  that  upon  a  sale  of 
this  kind  there  is  an  implied  warranty  that  the  article  is  what  it  purports  to  be, 
and,  consequently,  that  the  seller  is  liable  to  pay  its  value  in  the  market  at  the 
time  its  spuriousness  is  discovered. 

Post,  §  235.  It  would  seem  that  in  England  it  is  an  indictable  offence  for 
persons  to  conspire  to  fabricate  shares,  in  addition  to  the  limited  number  of  shares 
of  which  a  company  consists,  in  order  to  sell  them  as  good  shares,  notwithstand- 
ing any  imperfection  in  the  original  formation  of  the  company.  Rex  v.  Mott,  2 
C.  &P.  521  ;  Post,§  37,  n.  3. 


§37. 


READINESS   TO   PERFORM.  —  CUSTOM   AND   USAGE. 


127 


SECTION    VI. 


Readiness  to  perform.. —  Custom  and  Usage. 


1 .  Vendor  must  be  ready  and  offer  to  convey. 

2.  Vendee  must  be  ready  to  pay  price. 

3.  General  custom  and  local  usage. 


4.  The  party  taking  the  initiative  must  pre- 
pare the  writings. 

n.  3.  Oral  evidence  to  explain  memoranda  of 
contract. 


§  37.  1.  The  obligation  resting  upon  the  vendor  of  railway 
shares  is  to  have,  at  the  time  specified  in  the  contract  for  deliv- 
ery, a  good  title  to  the  requisite  number  of  shares,  and  to  mani- 
fest his  readiness  to  convey,  which  is  usually  done  by  tendering 
the  proper  conveyance.  But  this  is  not  necessary.  Any  other 
mode  of  showing  readiness  is  sufficient.1 

*  2.  The  corresponding  obligations  upon  the  vendee  are  readi- 
ness to  receive  the  proper  conveyance,  at  the  specified  time  and 
place,  and  to  pay  the  price,  and  it  would  seem  to  prepare  a 
proper  conveyance,  and  tender  the  same  for  execution,  upon  hav- 
ing a  good  title  made  out.2 

3.  But  the  incidents  of  such  contracts  are  liable  to  be  con- 
trolled by  general  and  local  customs,  and  usages  of  trade,  the 
same  as  other  similar  contracts.3     Hence  any  general  known 

1  Humble  v.  Langston,  2  Railw.  C.  533;  Hannuic  v.  Goldner,  11  M.  &  W. 
849  ;  Hare  v.  Waring,  3  M.  &  W.  362  ;  Hibblewhite  v.  M'Morine,  2  Railw.  C. 
51.  In  Munn  v.  Barnum,  24  Barb.  283,  it  is  held  that  mere  readiness  to 
transfer  is  sufficient  in  such  cases,  and  that  an  actual  transfer  is  never  requisite, 
where  the  purchaser  declines  to  pay  the  price. 

s  Lawrence  v.  Knowles,  5  Bing.  (N.  C.)  399;  Stephens  v.  De  Medina,  4  Ad. 
&  Ellis  (n.  s.),  422;  Bowlby  v.  Bell,  4  Railw.  C.  692. 

3  Stewart  v.  Cauty,  2  Railw.  C.  616;  8  M.  &  W.  160.  And  one  who  em- 
ploys a  share-broker,  at  a  particular  place,  to  purchase  shares,  is  bound  by  a 
usage,  affecting  the  broker,  at  that  particular  place.  As  where  the  plaintiff,  a 
share-broker  in  Leeds,  bought  for  defendant  ten  railway  shares  to  be  paid  for 
on  delivery.  The  defendant  not  being  ready  to  pay  the  money,  the  vendor 
made  a  resale,  at  a  less  price,  and  called  upon  the  plaintiff  for  the  difference, 
which  he  paid  without  communicating  with  defendant,  all  which  was  done  ac- 
cording to  the  custom  of  the  Leeds  stock-exchange.  It  was  held  the  plaintiff 
might  recover  of  defendant  the  difference,  in  an  action  for  money  paid.  Pol- 
lock v.  Stables,  5  Railw.  C.  352;  s.  c.  12  Q.  B.  765. 

*51 


128  TRANSFER   OF   SIIARES.  §  37. 

usage  of  those  negotiating  similar  business,  and  which  may  be 
fairly  presumed  to  have  been  known  to  the  parties,  or  which 

And  where  shares  had  been  purchased  by  a  stock-broker,  upon  which  a  call 
had  been  made,  but  not  then  due,  by*  the  rules  of  the  stock-exchange  it  was  the 
duty  of  the  vendee  to  pay  the  call,  the  vendor  having  paid  it,  to  enable  him  to 
convey,  the  broker  paid  the  amount  to  him,  and  it  was  held  he  might  recover  it 
of  the  vendee,  as  money  paid  for  his  use.  Bayley  v.  Wilkins,  7  C.  B.  886. 
And  it  would  seem  the  party  is  bound  by  such  usage,  though  not  cognizant  of 
it.  Parke  and  Rolfe,  BB.,  in  Bayliffe  v.  Butterworth,  5  Railw.  C.  283 ;  Sutton 
v.  Tatham,  10  A.  &  E.  27. 

And  whei'e  the  broker  could  not  obtain  the  certificate  of  shares  for  some 
months,  on  account  of  the  delay  in  having  them  registered  by  the  company,  and 
in  the  mean  time  a  call  was  made  which  he  paid,  the  person  for  whom  he  pur- 
chased having,  from  time  to  time,  urged  the  forwarding  of  the  scrip  without  de- 
lay, it  was  held  that  he  could  not  repudiate  the  contract,  and  recover  the  money 
advanced  to  the  broker  to  pay  the  price  of  the  purchase.  McEwen  v.  Woods, 
11  Q.  B.  13;  5  Railw.  C.  335. 

And  where  the  defendant  gave  the  plaintiff,  a  broker  on  the  stock-exchange, 
an  order  to  purchase  for  him  fifty  shares  in  a  foreign  railway  company,  at  a  time 
when  no  shares  of  the  company  were  in  the  market,  or  had  in  fact  issued,  but 
letters  of  allotment  were  then,  according  to  the  evidence  of  persons  on  the  stock- 
exchange,  commonly  bought  and  sold  as  shares,  and  the  plaintiff  bought  for  the 
defendant  a  letter  of  allotment  of  fifty  shares,  it  was  held  that  a  jury  might  well 
find  that  this  was  a  good  execution  of  the  order.  Mitchell  v.  Newhall,  15  M.  & 
W.  308;  s.  c.  4  Railw.  C.  300. 

And  where  the  broker  bought  scrip  certificates,  which  were  sold  in  the  mar- 
ket, as  "  Kentish  Coast  Railway  Scrip,"  and  were  signed  by  the  secretary  of  the 
company,  but  which  were  afterwards  repudiated  by  the  directors,  as  having  been 
issued  by  the  secretary,  without  authority,  in  an  action  to  recover  back  from  the 
broker  the  price  paid  him  by  the  plaintiff  for  the  scrip,  and  his  commissions,  on 
the  ground  of  it  not  being  genuine,  it  was  held  that  the  proper  question  for  the 
jury  was,  whether  what  the  plaintiff  intended  to  buy  was  not  that  which  went 
in  the  market  as  "  Kentish  Coast  Railway  Scrip,"  there  being  no  other  form  of 
that  scrip  in  the  market  at  the  time.  Lamert  v.  Heath,  15  M.  &  W.  486  ;  s.  C. 
4  Railw.  C.  302;  Ante,  §  36. 

The  remarks  of  Lord  Campbell,  Ch.  J.,  in  the  very  late  case  of  Humfrey  v. 
Dale,  7  El.  &  Bl.  266,  20  Law  Rep.  227,  in  regard  to  the  necessity  of  relax- 
in<*  the  rule  of  the  admissibility  of  oral  evidence  to  explain  the  import  of  com- 
mercial terms  and  memoranda  in  written  contracts  between  merchants  and 
business  men,  are  certainly  worthy  of  his  lordship's  eminent  reputation  for  wis- 
dom and  learning  :  — 

"  The  only  remaining  question  is,  having  stated  a  purchase  for  a  third  person 
as  principal,  is  there  evidence  on  which  they  themselves  can  be  made  liable  ? 
Now  neither  collateral  evidence,  nor  the  evidence  of  a  usage  of  trade,  is  receiv- 
able to  prove  anything  which  contradicts  the  terms  of  a  written  contract ;  but 


§  37.     READINESS  TO  PERFORM.  —  CUSTOM  AND  USAGE.      129 

ought  to  have  been,  and  any  local  custom,  or  usage  of  trade, 
which  was  in  fact  known  to  both  parties,  is  regarded  as  if  incor- 
porated into  the  contract,  the  parties  being  presumed  to  have 
contracted  with  reference  to  it.3  *  But  it  may  be  questionable, 
perhaps,  whether  the  custom  in  regard  to  sales  of  stock,  in  this 
country,  would  require  the  purchaser  to  be  *  at  the  sole  expense 
of  preparing  the  proper  conveyance.  It  is  safe,  perhaps,  to  say, 
that  the  party  tendering  a  conveyance,  or  he  who  demands  it,  in 
practice,  ordinarily  causes  the  instrument,  required  to  be  exe- 

subject  to  this  condition  both  may  be  received  for  certain  purposes.  Here  the 
plaintiff  did  not  seek,  by  the  evidence  of  usage,  to  contradict  what  the  tenor  of 
the  note  primarily  imports,  namely,  that  this  was  a  contract  which  the  defend- 
ants made  as  brokers.  The  evidence,  indeed,  is  based  on  this.  But  the  plain- 
tiff seeks  to  show  that,  according  to  the  usage  of  the  trade,  and  as  those  con- 
cerned in  the  trade  understand  the  words  used,  they  imported  something  more  ; 
namely,  that  if  the  buying  broker  did  not  disclose  the  name  of  his  principal,  it 
mia;ht  become  a  contract  with  him,  if  the  seller  pleased.  The  principle  on 
which  evidence  is  admissible  is,  that  the  parties  have  not  set  down  on  paper  the 
whole  of  their  contract  in  all  its  terms,  but  those  only  which  were  necessary  to 
be  determined  in  the  particula»case  by  specific  agreement,  and  which  of  course 
might  vary  infinitely,  leaving  to  implication  and  tacit  understanding  all  those 
general  and  unvarying  incidents  which  an  uniform  usage  would  annex,  and  ac- 
cording to  which  they  must  in  reason  be  understood  to  contract,  unless  they  ex- 
pressly exclude  them.  To  fall  within  the  exception,  therefore,  of  repugnancy, 
the  incident  must  be  such  as,  if  expressed  in  the  written  conti-act,  would  make 
it  insensible  or  inconsistent.  Brown  v.  Byrne,  3  Ell.  &  Bl.  703.  [After  allud- 
ing to  several  cases,  especially  Trueman  v.  Loder,  11  Ad.  &  Ell.  589,  in  which 
case  is  found  a  dictum  adverse  to  admissibility  of  this  evidence,  the  learned  judge 
continued :]  We  may  refer  to  Hodson  v.  Davies,  2  Camp.  530,  not  as  a  legal 
decision  opposed  to  Trueman  v.  Loder,  —  for  Lord  Denman,  in  his  judgment  in 
the  latter  case,  showed  that  it  could  not  be  supposed  to  carry  with  it  the  weight 
of  Lord  Ettenborough's  decision,  —  but  because  both  cases,  we  think,  disclose 
how  entirely  the  minds  of  lawyers  are  under  a  different  bias  from  that  which, 
in  spite  of  them,  will  always  influence  the  practice  of  traders  which  creates  the 
usage  of  trade.  Lawyers  desire  certainty,  and  would  have  a  written  contract 
expi-ess  all  its  1,erms,  and  desire  that  no  parol  evidence  beyond  it  should  be  re- 
ceivable ;  but  merchants  and  traders,  with  a  multiplicity  of  contracts  preparing 
on  them,  and  meeting  each  other  daily,  desire  to  write  little,  and  leave  unwrit- 
ten what  they  take  for  granted  in  every  contract.  It  is  the  business  of  courts 
reasonably  to  shape  these  rules  of  evidence  so  as  to  make  them  suitable  to  the 
habits  of  mankind,  and  such  as  are  not  likely  to  exclude  the  actual  facts  of  the 
dealings  between  parties,  when  they  are  to  determine  on  the  controversies 
which  grow  out  of  them.  The  rule  to  enter  a  nonsuit  must  be  discharged." 
See  Taylor  v.  Stray,  29  Law  Times,  95 ;  s.  c.  2  C.  B.  N.  S.  175. 
VOL.  I.  9  *  52,  53 


130  TRANSFER   OF   SHARES.  §  38. 

cuted,  to  be  prepared  in  the  one  case  and  executed  in  the  other. 
But  less  will  often  suffice,  where  the  other  party  refuses  to  pro- 
ceed.4 


*SECTION    VII. 
Damages. — Specific  Performance. 

1 .  Damages,  difference  between  contract  price  I  2.  Equity  will  decree  specific  performance  of 
and  price  at  time  of  delivery .  contract  for  sale  of  shares. 

§  38.  1.  The  damages  which  either  party  is  entitled  to  recover, 
is  the  difference  between  the  contract  price  and  the  market  price, 
at  the  time  for  delivery,  or,  in  some  cases,  a  reasonable  time  after, 
which  is  allowed  either  party  for  resale  or  repurchase.1 

4  Walford,  262,  note,  where  it  is  said,  "  It  would  seem,  that  if  the  vendor 
fails  to  make  out  a  title,  this  dispenses  with  a  tender  of  conveyance."  But  if 
stock  is  to  be  delivered  on  demand,  it  is  necessary  to  show  an  actual  request  to 
deliver,  in  order  to  sustain  an  action  for  non-delivery.  Green  v.  Murray,  6  Jur. 
728.  Where  the  contract  is  to  deliver  stock  in  a  reasonable  time,  or  no  time 
being  specified,  which  the  law  regards  as  in  a  reasonable  time,  or  on  or  before 
a  day  named,  it  is  presumed  each  party  is  entitled  to  the  whole  time  in  which 
to  perform.  Stewart  v.  Cauty,  2  Kailw.  C.  616  ;  s.  c.  8  M.  &  W.  160.  It 
seems  that  where  the  deed  of  settlement  required  the  consent  of  the  directors 
to  the  validity  of  the  transfer  of  shares,  it  is  incumbent  upon  the  vendor  to  ob- 
tain such  consent ;  and  where  the  transfer  was  duly  made,  executed,  and  de- 
livered, and  the  money  for  the  price  paid,  but  the  directors  refused  to  give  their 
assent,  it  was  held  the  purchaser  might  recover  back  the  money  paid,  and  that 
the  return  of  the  transfer  was  collateral  to  the  contract  of  purchase,  and  not  a 
condition  precedent  to  the  plaintiffs  right  to  recover.  Wilkinson  v.  Lloyd,  7 
Q.  B.  27. 

And  where  the  charter  of  the  company,  or  the  statute,  prohibits  the  transfer  of 
the  shares  while  calls  remain  due,  it  has  been  held  that  a  deed  of  transfer  made, 
while  calls  remained  unpaid,  was  altogether  null  and  void,  so  that  the  company 
may  refuse  to  register  such  a  transfer,  although  the  calls  have  been  subsequently 
paid.  It  is  said  it  would  be  necessary  to  re-execute  the  deed,  after  the  payment 
of  the  calls,  before  the  company  could  be  compelled  to  register  it.  Hodges,  121, 
122.  But  it  has  been  said,  that  if  a  deed  be  delivered  as  an  escrow  in  such 
case,  to  take  effect  when  the  calls  are  paid,  it  may  be  good.  Palteson,  J.,  in 
Hall  v.  Norfolk  Estuary  Co.,  8  Eng.  L.  &  Eq.  351. 

1  Barned  v.  Hamilton,  2  Railw.  C.  624 ;  Humble  v.  Mitchell,  2  Railw.  C.  70 ; 
Shaw  v.  Holland,  15  M.  &  W.  136.    But  the  purchaser  is  not  entitled  to  recover 
any  advance  in  the  market  price  of  such  shares,  after  a  reasonable  time  for  re- 
*54 


§38.  DAMAGES.  —  SPECIFIC   PERFORMANCE.  131 

2.  And  a  court  of  equity  will  decree  a  specific  performance  of 
a  contract  to  transfer  railway  shares,  but  not  for  the  transfer  of 
stock  in  the  funds,  as  any  one  may  always  obtain  that  in  the 
market,  but  railway  stock  is  not  always  obtainable.2  So  it  was 
held,  that  a  court  of  equity  will  decree  a  specific  performance 
against  a  railway  company  of  a  contract  to  take  land  and  pay  a 
stipulated  price.3 

purchase.  Tempest  v.  Kilner,  2  C.  B.  300 ;  s.  c.  3  C.  B.  249.  See  also  Pott 
v.  Flather,  5  Railw.  C.  85;  Williams  v.  Archer,  id.  289;  s.  c.  5  C.  B.  318. 
But  a  broker  is  not  entitled  to  commissions  unless  he  complete  the  sale,  but 
may  be  entitled  to  reimbursement  of  actual  expenses.  .  Durkee  v.  Vermont 
Central  Railroad,  29  Vt.  R.  127.  In  a  recent  case  in  the  Common  Pleas, 
Loder  v.  Kekule,  30  Law  Times,  64,  it  was  decided,  in  regard  to  the  subject 
of  damages  for  breach  of  contract,  by  delivery  of  an  inferior  article,  that  if  the 
article  was  one  that  could  be  immediately  sold  in  the  market,  the  rule  was,  the 
difference  between  the  market  value  of  the  article  delivered  and  that  con- 
tracted for.  But  where  the  article  cannot  be  immediately  resold,  as  where  the 
resale  is  delayed  by  the  defendant,  the  measure  of  damages  is  the  difference  be- 
tween the  value  of  the  article  contracted  for,  at  the  time  and  place  of  delivery, 
and  the  amount  made  by  the  resale,  within  a  reasonable  time  of  the  delivery  of 
the  article.  See  also  Rand  v.  White  Mountains  Railw.,  40  N.  H.  R.  79.  It  is 
here  said  that  such  a  contract  creates  no  debt,  attachable  by  process  of  foreign 
attachment,  but  is  merely  a  claim  for  unliquidated  damages.  And  see  Hager 
v.  Reed,  11  Ohio  St.  626,  where  the  general  question  of  the  enforcement  of  con- 
tracts to  transfer  stock  is  considered,  and  the  effect  of  judgment  for  the  price, 
without  an  actual  transfer  or  an  order  of  court  therefor. 

2  Duncuft  v.  Albrecht,  12  Simons,  189;  Shaw  v.  Fisher,  5  Railw.  C.  461. 
Leach  v.  Fobes,  Sup.  J.  Ct.  Mass.  1859.  There  has  been  the  most  controversy 
in  the  English  courts  of  equity  as  bearing  upon  the  question  of  decreeing  spe- 
cific performance  of  contracts  to  transfer  shares  in  joint-stock  companies,  upon 
the  point  of  the  sufficiency  of  the  proof.  See  Parish  v.  Parish,  32  Beav.  207  ; 
Birmingham  v.  Sheridan,  10  Jur.  N.  S.  415. 

3  Inge  v.  Birmingham  W.  &  S.  V.  Railway  Co.,  23  Eng.  L.  &  Eq.  601  ;  post, 
§  213.     So  also  in  their  favor,  Old  Colony  Railw.  v.  Evans,  6  Gray,  25. 


132 


TRANSFER  OF   SHARES. 


§39 


SECTION    VIII. 


Specific  Performance. 


1.  Specific  performance  decreed  against  the 

vendee. 

2.  This  was  denied  in  the>early  cases. 


3.  Owner  of  original  shares  may   transfer 

them. 

4.  Will  not  decree  specific  performance  where 

not  in  the  power  of  the  party. 


§  39.  1.  It  is  considered,  under  the  English  statutes,  that  the 
purchaser  of  shares  in  a  railway  is  bound  to  execute  the  assign- 
ment on  his  part,  procure  himself  to  be  registered,  pay  all  calls 
*  intervening  the  assignment  and  the  registration  of  his  name  as 
a  shareholder,  and  indemnify  the  seller  against  future  calls,  and 
upon  a  bill  filed  for  that  purpose,  it  was  so  decreed.1 

2.  But  in  some  of  the  earlier  cases,  very  similar  in  principle, 
the  Court  of  Chancery  declined  to  interfere,  and  the  opinion  is 
very  distinctly  intimated,  that  the  law  implied  no  undertaking 
on  the  part  of  the  purchaser  of  railway  shares,  to  assume  the 
position  and  burdens  of  the  seller.2 

1  Wynne  v.  Price,  5  Eailw.  C.  465  ;  Shaw  v.  Fisher,  id.  461.  These  cases 
were  decided  by  V.  C.  Knight  Bruce,  and  are  obviously  somewhat  at  variance 
with  the  principles  assumed  in  Humble  v.  Langston,  7  M.  &  W.  517.  The 
learned  judge  here  seems  to  have  felt  a  just  indignation  that  any  defence 
should  have  been  attempted  in  such  a  case.  "  The  defence,"  said  he,  "  was 
without  apology  or  excuse."  And  this  same  learned  judge,  in  the  case  of 
Jacques  v.  Chambers,  4  Railw.  C.  499,  held,  that  where  a  testator,  at  the  time 
of  his  death,  was  possessed  of  fifty  original  shares,  and  seventy  purchased  shares 
in  a  railway,  calls  upon  which  had  not  all  been  made,  by  his  will  gave  thirty  whole 
shares  in  such  railway  to  trustees,  for  the  benefit  of  a  married  woman  for  life, 
without  power  of  anticipation,  and  thirty  shares  to  B.,  and  twenty-five  original 
and  five  purchased  shares  having  been  allotted  by  the  executors  to  each  of  the 
legatees,  the  testator's  estate  was  liable  to  pay  the  calls  upon  the  shares,  and  a 
sum  to  pay  the  unpaid  calls  was  ordered  to  be  placed  to  a  separate  account,  and 
laid  out,  and  the  income  meanwhile  paid  to  those  entitled  to  the  general  residue. 
This  case  is  decided  upon  the  authority  of  Blount  v.  Hipkins,  7  Simons,  43,  51, 
which  it  is  here  said,  "  as  it  regards  both  sets  of  shares,  cannot  be  substantially 
distinguished  from  Jacques  v.  Chambers."  See  also  Duncuft  v.  Albrecht,  12 
Simons,  189.  But,  as  before  said,  it  is  well  settled,  that  courts  of  equity  -in  Eng- 
land will  not  decree  specific  performance  of  a  contract  to  sell  public  stocks, 
which  may  always  be  had  in  the  market.     Nulbrown  v.  Thornton,  10  Vesey,  159. 

2  Jackson  v.  Cocker,  2  Railw.  C.  368 ;  s.  c.  4  Beavan  59. 

*55 


§  39.  SPECIFIC   PERFORMANCE.  133 

3.  In  the  case  of  Jackson  v.  Cocker,  a  query  is  started  by  the 
Master  of  the  Rolls,  upon  the  authority  of  Josephs  v.  Pebrer,  3  B. 
&  C.  639,  whether  a  contract  by  which  the  original  subscribers 
of  shares  in  a  railway  stipulate  to  be  relieved  from  their  under- 
taking, and  to  substitute  another  party  in  their  place,  is  to  be 
regarded  as  legal  ?  But  the  case  referred  to  was  decided  upon 
the  ground  that  the  concern  then  in  question  was  illegal  in  itself, 
within  the  English  statute,3  as  having  transferable  shares,  and 
affecting  to  act  as  a  body  corporate/jWithout  authority  by  charter 
or. act  of  parliament. 

4.  The  Court  of  Chancery  will  not  decree  specific  performance 
against  a  railway  company  which  promised  to  allot  shares  to  the 
plaintiff,  especially  where  it  appears  such  shares  have  been  given 
*  to  others.4  A  court  of  equity  will  never,  it  seems,  decree  specific 
performance  against  a  party,  where  it  is  not  in  his  power  to  per- 
form, although  such  incapacity  be  the  result  of  his  own  fault. 
But  will,  in  such  case,  leave  the  other  party  to  his  remedy  at 
law,  by  way  of  damages,  which  is  all  the  redress  that  remains.5 

3  6  Geo.  1.  c.  18. 

4  Columbine  v.  Chichester,  2  Phillips,  C.  C.  27. 

5  Greenaway  v.  Adams,  12  Vesey,  395,  400;  Variok  v.  Edwards,  11  Paige, 
289.  In  the  case  of  Miller  v.  The  Illinois  Central  Railw.  &  Robert  &  George 
Schuyler,  24  Barb.  312,  it  was  held,  that  where  the  company,  by  their  treas- 
urer, gave  a  receipt  to  the  Schuylers  for  $  7,500,  to  be  repaid  with  interest 
on  demand,  or  received  in  payment  of  ten  dollars  on  a  share  of  stock,  to  be 
issued  to  them  or  their  assigns,  when  the  directors  shall  authorize  the  issue  of 
more  stock,  this  only  gave  the  holder  of  such  receipt  an  option  to  take  the 
shares  or  the  money,  and  that  he  could  not  claim  to  be  a  holder  of  stock,  or  to 
have  any  right  thereto,  until  he  had  given  notice  of  his  election  to  take  stock. 
And  where  the  holder  of  this  receipt  had  assigned  it  as  collateral  security  to  the 
plaintiff,  with  an  agreement  that  he  should  have  300  of  the  shares,  but  no  notice 
of  any  interest  of  plaintiff  had  been  given  the  company,  and  the  company 
made  a  new  issue  beyond  what  was  necessary,  and  after  the  7,500  shares  had 
been  issued  to  Robert  Schuyler,  and 'the  300  shares  set  apart  by  him  for 
plaintiff,  but  the  300  shares  were  not  transferred  to  plaintiff  till  after  the  second 
new  issue,  nor  had  the  plaintiff  knowledge  of  it  at  the  time  he  accepted  the  300 
shares :  It  was  held  that  the  plaintiff  had  no  claim  against  the  company  to  allot 
him  the  proportion  of  the  new  issue  of  shares,  which  the  300  shares  were  enti- 
tled to  receive,  they  having  no  notice  of  his  equitable  ownership  of  the  300 
shares.  And  that  although  certain  information  came  to  the  president,  while  act- 
ing in  some  other  capacity,  that  some  contract  had  been  made,  by  which  the 

*56 


134 


TRANSFER   OF   SHARES. 


§40. 


SECTION    IX. 


Trustee  entitled  to  Indemnity  against  future   Calls. 


1.  Trustee  entitled  to  indemnity,  on  general 

•principles. 

2.  English  courts  hesitated  in  regard  to  rail- 

way shares. 

3.  4.   Cases  reviewed. 


5.  Mortgagees  liable,  as  stockholders,  for  the 

debts  of  the  company. 

6.  The  ostensible  owner  must  respond  to  all 

responsibilities. 


§40.  1.  It  seems  to  be  regarded  as  the  general  rule  of  chancery 
law,  that  the  trustee  of  property  is  entitled  to  indemnity,  for  ex- 
penses bond  fide  incurred,  in  the  management  and  preservation  of 
the  trust-fund,  or  estate,  either  out  of  the  property,  or  as  a  per- 
sonal duty,  from  the  cestui  que  trust  in  most  cases.1 

2.  We  apprehend  there  is  no  good  reason  why  this  principle 
should  not  receive  a  general  application  to  the  case  of  shares  in 
a  railway  company,  held  as  security  for  a  debt,  by  way  of  mort- 
gage or  pledge.  And  it  would  seem,  that  no  serious  question 
could  ever  have  arisen  upon  the  subject,  but  for  the  strange  in- 
consistencies into  which  the  English  courts  and  judges  have 
been  led,  by  attempting,  for  so  long  a  period,  to  maintain  the 
doctrine  laid  down  in  Humble  v.  Langston,2  but  which  is  now 
effectually  overruled,  in  the  tribunal  of  last  resort.3 

3.  But  we  shall  refer  briefly  to  the  decisions,  upon  this  point, 
in  regard  to  railway  shares  and  stock,  in  other  similar  companies. 

Schuylers  were  to  transfer  a  portion  of  the  stock  to  the  plaintiff,  yet  as  this 
was  not  given  or  understood  as  notice  to  the  company,  or  to  him  as  president, 
it  could  not  affect  the  company.  And  that  the  surrender  of  the  receipt  with 
certain  indorsements,  showing  plaintiff's  interest,  after  the  resolution  to  issue 
the  stock,  fixing  the  mode  of  distribution,  could  not  bind  them  to  allot  shares  to 
the  plaintiff  upon  the  300  shares. 

1  Murray  v.  De  Rottenham,  6  Johns.  Ch.  52,  67  ;  Green  v.  Winter,  1  Johns. 
Ch.  27;  Watts  v.  Watts.  2  M'Cord,  Ch.  82;  Myers  v.  Myers,  2  M'Cord, 
Ch.  264  ;  McMillan  v.  Scott,  1  Monroe,  151  ;  Morton  v.  Barrett,  22  Maine  R. 
257  ;  Draper  v.  Gordon,  4  Sand.  Ch.  210;  Egbert  v.  Brooks,  3  Harring.  110; 
Methodist  Episcopal  Church  v.  Jacques,  1  Johns.  Ch.  450;  Story  on  Bail- 
ments,  §  306,  306  a,  357,  358. 

4  7M.  &W.  517. 

3  Walker  v.  Bartlett,  36  Eng.  Law  &  Eq.  368. 


§  40.  INDEMNITY   AGAINST   FUTURE   CALLS.  135 

*  It  was  hold,  by  Wig-ra?n,  Vice-Chancellor,4  that  where  there  was 
a  contract  for  retransfer,  claimed  by  the  mortgagor,  or  found,  in 
express  terms,  in  the  contract  of  pledge,  or  mortgage,  or  inferable 
from  circumstances,  that  this  was  sufficient  ground  for  implying 
a  contract,  by  the  mortgagor,  to  indemnify  the  mortgagee,  against 
liability  to  the  creditors  of  the  company,  for  debts  incurred,  while 
his  name  remained  upon  the  register  of  shares,  as  owner,  and  a 
decree  was  made  accordingly. 

4.  The  same  learned  judge,  in  the  same  case,  considered,  that 
where  the  mortgage  was  made  simply  as  an  absolute  transfer, 
subject  to  redemption,  and  nothing  had  passed,  binding  the  mort- 
gagor to  take  a  retransfer  to  the  shares,  the  mortgagor  was  not 
bound  to  indemnify  the  mortgagee  against  debts  incurred  after 
the  transfer  made  in  the  mortgage,  and  before  the  mortgage  debt 
was  paid  off.  But  it  is  here  maintained,  that  the  mortgagee  has 
not  in  such  case  any  right,  at  law,  against  the  mortgagor,  as  to 
payments,  which  he  has  been  compelled  to  make,  while  he  re- 
mained the  ostensible  owner  of  the  shares,  even  where  a  contract 
for  retransfer  is  shown.  But  a  late  English  writer  upon  this  sub- 
ject 5  seems  to  incline  to  the  opinion  that,  in  such  case,  an  action 
of  trespass  on  the  case  might  be  maintained,  against  the  pur- 
chaser of  shares,  who  fails  to  cause  his  name  to  be  registered  as 
owner,  or  to  indemnify  the  seller  against  liabilities  after  the  sale. 
And  the  same  principle  will  apply  to  the  mortgagee,  after  the 
debt  is  paid.  But  all  these  refinements  must  now,  we  think,  be 
regarded  as  effectually  abrogated,  by  the  virtual  abandonment, 
by  the  English  courts,  of  the  rule  laid  down  in  Humble  v.  Lang- 
ston,  and  the  recognition  of  the  contrary  doctrine. 

5.  It  has  been  held,  in  this  country,  that,  where  B.  being  in- 
debted, transferred  shares  to  his  creditors,  as  security,  with  the 
power  of  sale,  and  upon  condition  that   the  shares  should  be 

4  Phene  v.  Gillan,  5  Hare,  1.  In  this  case,  it  was  held,  that  where  the  mort- 
gagor is  entitled  to  claim  a  retransfer  of  shares,  standing  on  the  register  of  shares, 
in  the  name  of  the  mortgagee,  the  debt  being  paid  off,  he  is  entitled  to  take  pro- 
ceedings to  compel  such  retransfer  on  the  books  of  the  company,  in  the  name  of 
the  mortgagee,  giving  the  proper  indemnity  for  costs.  And  either  the  company 
or  the  directors,  who  have  prevented  the  shares  from  being  transferred,  are 
proper  parties  to  the  bill,  and,  it  would  seem,  necessary  parties. 

5  Hodges,  122. 

*57 


136  TRANSFER   OF   SHARES.  §  40. 

returned  or  accounted  for,  whenever  the  debt  should  be  paid, 
the  debt  being  paid  off,  and  an  informal  power  of  retransfer 
*  given  the  mortgagee,  and  subsequently  a  more  formal  one,  the 
mortgagees  were  to  be  regarded  as  stockholders,  until  the  actual 
retransfer  of  the  shares,  and  as  such  liable  to  the  creditors  of  the 
company,  under  the  charter.6 

As  the  case  of  Humble  v.  Langston  is  not  in  terms  overruled, 
although  it  is  in  principle,  we  think,  we  here  insert  the  substance 
of  the  opinion  of  the  court  in  Walker  v.  Bartlett,  as  showing  the 
present  state  of  the  English  law  on  the  subject.7 

6  Adderly  v.  Storm  &  Bailey,  6  Hill,  624.  Bronson,  J.,  argues  the  liability 
of  the  mortgagees  to  the  creditors  of  the  company,  while  their  names  remained 
on  the  books  of  the  eompany,  as  absolute  shareholders,  on  the  ground  that  "  they 
might  receive  dividends,  vote  at  elections,  and  enjoy  all  the  rights  pertaining  to 
the  ownership  of  the  property,  and  with  the  privileges  they  must  take  the  bur- 
dens of  a  stockholder."  A  query  is  here  started  whether  a  retransfer  to  the 
mortgagor  of  the  shares,  upon  the  payment  of  the  debt,  might  not  release  the 
mortgagee.  "  The  assignment,  as  between  the  parties  to  it,  would  have  passed 
the  legal  interest  in  the  stock."  But  are  the  creditors  of  the  company  bound  to 
look  beyond  the  register  of  shares?  Kosevelt  v.  Brown,  1  Kernan,  148  ;  Wor- 
rall  v.  Judson,  5  Barb.  210;  Stanley  v.  Stanley,  13  Shepley,  191.  In  Ad- 
derly  v.  Storm,  it  is  intimated,  that  a  fraudulent  transfer  of  stock  by  a  solvent 
owner  to  an  insolvent  party,  for  the  purpose  of  avoiding  liability  to  the  credit- 
ors of  the  company,  might  not  avail  the  party,  even  at  law. 

7  "  The  case  of  Wynne  v.  Price,  3  De  G.  &  S.  310,  shows  that  in  equity  the 
plaintiff  would  be  entitled,  under  the  circumstances  of  the  present  case,  to  in- 
demnity ;  but  it  was  contended  for  the  defendant,  that,  however  the  case  might 
be  in  equity,  there  was  no  contract  for  indemnity  to  be  implied  by  law  ;  and 
the  case  of  Humble  v.  Langston,  7  M.  &  W.  517,  was  relied  upon  as  a  direct 
authority  against  the  plaintiff  upon  this  point ;  and  the  Court  of  Common  Pleas, 
in  the  judgment  appealed  against,  considered  that  it  was  bound  by  that  deci- 
sion, though  it  was  intimated  that  but  for  that  express  decision  their  own  judg- 
ment might  have  been  different.  It  must  be  admitted  that,  in  principle,  no 
substantial  difference  can  be  taken  between  that  case  and  the  present,  except 
this,  —  that  in  Humble  v.  Langston,  the  plaintiff  claimed  to  be  indemnified  by 
the  defendant  against  all  future  calls,  even  though  made  after  the  defendant 
had  himself  transferred  the  shares  to  other  persons;  and  the  Court  of  Ex- 
chequer, at  the  end  of  the  judgment,  observes,  that  if  there  were  any  analogy 
in  principle  between  the  case  of  Burnett  v.  Lynch  and  that  before  the  court,  the 
defendant's  implied  promise  would  only  be  to  indemnify  against  such  calls  as 
should  be  made  while  he  was  beneficially  interested,  whereas  the  plaintiff  Humble 
claimed  an  indemnity  against  calls  made  after  the  defendant  had  parted  with 
his  interest.     This,  no  doubt,  is  a  very  important  distinction ;  and  though  the 

*58 


§40.  INDEMNITY   AGAINST   FUTURE   CALLS.  137 

6.  It  seems  most  unquestionable  that  a  trustee  may  be  made 
liable  for  assessments  or  calls  upon  the  shares  standing  in  his 

Court  of  Exchequer  expresses  an  opinion  that  there  was  no  contract  of  indem- 
nity at  all,  it  adverts  to  the  difference  between  a  claim  to  indemnify  during  the 
time  the  defendant  is  beneficially  interested,  and  a  claim  to  be  indemnified  after 
he  has  ceased  to  be  interested.  The  circumstances  of  the  present  case  are, 
therefore,  distinguishable  from  those  in  Humble  v.  Langston,  and  it  consequently 
is  not  so  direct  an  authority  against  the  plaintiff's  claim  in  the  present  case,  as 
at  first  sight  it  might  appear  to  be. 

*"It  seems  to  us,  therefore,  that  the  circumstances  of  this  case  bring  it  di- 
rectly within  the  principle  upon  which  Burnett  v.  Lynch  was  decided.  In  the 
present  case,  the  defendant  entered  into  no  express  agreement  to  pay  calls  or 
indemnify,  but  he  accepted  the  only  transfer  the  plaintiff  could  give,  and  which 
invested  him  with  full  power  to  become  the  registered  owner  of  the  shares  when 
he  pleased.  That  transfer  expressed  that  the  transferee  took  them  subject  to 
the  same  rules  as  those  under  which  the  plaintiff  held  them,  one  of  which  was, 
that  the  registered  owner  should  pay  the  calls.  It  could  hardly  have  been  the 
intention  of  the  parties,  that  if  the  defendant,  for  his  own  benefit,  omitted  to 
make  a  perfect  transfer,  by  registration  in  the  company's  books,  the  plaintiff 
should  still  continue  to  pay  the  calls ;  and  if  that  was  not  the  intention,  was  it 
not  understood  between  them  that  the  defendant  should  save  the  plaintiff  harm- 
less from  any  calls  made  during  the  time  when  he  was  virtually  owner  of  the 
shares? 

"  In  Burnett  v.  Lynch,  a  lease  had  been  granted  to  Burnett,  in  which  he  cov- 
enanted to  pay  the  rent  and  repair  the  premises ;  his  executors  assigned  the 
lease  to  Lynch,  subject  to  the  performance  of  the  covenant,  but  without  any 
express  covenant  or  contract  by  him  that  he  would  pay  the  rent  or  perform  the 
covenant.  The  executors  were  called  upon  by  the  landlord,  and  obliged  to  pay 
damages  for  not  repairing,  according  to  the  covenant,  during  the  time  Lynch 
was  assignee ;  the  executors  brought  an  action  on  the  case  against  Lynch, 
founded  on  a  breach  of  duty  in  not  repairing.  In  giving  judgment  for  the 
plaintiffs,  Abbott,  Ch.  J.,  says,  'It  is  true,  the  defendant  entered  into  no  express 
covenant  or  contract  that  he  would  pay  the  rent  or  perform  the  covenants ;  but 
he  accepted  the  assignment  subject  to  the  performance  of  the  covenants;  and 
we  are  to  consider  whether  any  action  will  lie  against  him.  If  we  should  Bold 
that  no  action  will  lie  against  him,  the  consequence  will  follow,  that  a  man  hav- 
ing taken  an  estate  from  another,  subject  to  the  payment  of  rent  and  perform- 
ance of  covenants,  and  having  thereby  induced  an  undertaking  in  the  other  that 
he  would  pay  the  rent  and  perform  the.  covenants,  will  be  allowed  to  cast  that 
burden  upon  the  other  person.  Reason  and  common  sense  show  that  that  never 
could  be  intended.'  He  then  goes  on  to  say,  that  though  an  action  on  the  case 
would  lie,  there  might  also  be  an  action  of  assumpsit. 

"  With  the  distinction  of  circumstances  to  which  we  have  already  adverted 
between  this  case  and  that  of  Humble  v.  Langston,  we  think  that  the  principle 
upon  which  the  case  of  Burnett  v.  Lynch  was  decided,  is  directly  applicable  to 

*59 


138  TRANSFER   OF    SHARES.  §  41. 

name,  beyond  the  amount  of  the  trust  property.8  And  the 
transferee  of  shares,  having  taken  upon  himself  the  position  and 
attitude  of  owner,  cannot  be  allowed  to  excuse  himself  from 
responsibility  by  pleading  irregularity  in  transfers,  and  it  makes 
no  difference  in  this  respect  whether  he  hold  as  trustee  or  ben- 
eficially. 

*SECTION    X. 
Fraudulent  Practices  to  raise  the  Price  of  Shares. 

1 .  Courts  of  equity  will  vacate  sales  so  pro- 1  acted  bona  fide,  unless  the  shares  were 

cured.  valueless. 

2.  Necessary  parties.  |  6.  Managers  of  company  liable  in  tort  to  par- 


3,  4.  Dividends  declared  when  none  are  earned 
will  vacate  sales,  and  subject  directors  to 
indictment. 

5.  Equity   will  not   interfere  where  vendor 


ty  injured.  * 

7  and  n.  10.  Purchasing  shares  in  another 
company  considered. 


§  41.  1.  All  fraudulent  practices,  either  of  the  shareholders,  or 
directors,  resorted  to  for  the  purpose  of  raising  the  price  of  shares 
in  the  market,  where  sales  have  been  induced  in  faith  of  the  truth 
of  such  representations,  will  be  relieved  against  in  a  court  of 
equity.1     As  where  the  directors  of  a  joint-stock  company,  in 

the  present  case,  and  that  the  plaintiff  is  entitled  to  make  the  rule  absolute  to 
set  aside  the  nonsuit,  and  enter  a  verdict  upon  the  first  count  of  the  declaration, 
and  so  much  of  the  pleas  as  may  be  applicable  to  that  count." 

8  Hoare  ex  parte,  2  Johns.  &  Hem.  229  ;  s.  c.  8  Jur.  N.  S.  713. 

1  Stainbank  v.  Fernley,  9  Simons,  556.  And  in  a  very  recent  case,  the 
plaintiff,  a  director  in  a  bank,  who  had  been  such  from  its  organization,  who  usu- 
ally attended  the  meetings,  and  was  actually  present  and  took  part  in  the  pro- 
ceedings of  the  board  of  directors  when  the  last  dividend  was  declared,  having 
purchased  from  the  cashier  of  the  institution  twenty  shares  of  the  capital  stock, 
brought  an  action  to  have  such  contract  rescinded,  and  to  recover  back  the 
money  paid,  on  the  ground  of  false  representations  and  concealments  by  the 
cashier  as  to  the  value  of  the  stock  and  the  condition  of  the  bank  at  the  time 
of  the  purchase  :  Held,  that  the  plaintiff  was  not  estopped  from  setting  up  his 
actual  ignorance  of  the  condition  of  the  bank  at  the  time  of  the  sale. 

That  although  the  purchaser  was  a  director  of  the  bank,  having  the  means 
or  knowledge,  he  was  not  in  the  particular  transaction  chargeable  with  notice  of 
the  condition  of  the  bank. 

That  if  he  was  actually  ignorant  of  its  condition,  the  fraudulent  vendor 
*C0 


§  41.  PRACTICES   TO  RAISE   THE   PRICE   OF   STOCK.  139 

order  to  sell  their  shares  to  advantage,  represented  in  their  re- 
ports, and  by  their  agents,  that  the  affairs  of  the  company  were 
in  a  very  prosperous  state,  and  declared  large  dividends,  at  a 
time  when  the  affairs  of  the  company  were  greatly  embarrassed. 
2.  A  person  who  had  been  induced,  by  these  means,  to  pur- 
chase shares  of  one  of  the  directors,  filed  a  bill  against  that 
director,  praying  to  be  paid  his  purchase-money  and  offering  to 
retransfer  the  shares  ;  a  demurrer  for  want  of  equity,  and  be- 
cause all  the  other  partners  in  the  transaction  ought  to  have 
been  made  parties,  was  overruled.  But  where  a  bill  was  filed 
against  the  public  officer  of  a  jount-stock  bank,  charging  a  simi- 

would  be  equally  responsible  to  him  for  the  deceit  as  to  any  stranger  to  the  in- 
stitution. 

That  it  was  not  a  case  in  which  the  plaintiff  was  legally  bound  to  know  the 
truth  or  falsity  of  the  vendor's  representations. 

Held,  also,  that  the  evidence  in  such  action  plainly  showing  that  at  the  time 
of  the  alleged  sale  and  transfer  of  the  stock,  on  the  29th  August,  1857,  the  bank 
was,  by  the  application  of  all  the  ordinary  tests,  sound,  solvent,  and  prosperous, 
and  the  stock  worth  all  that  the  defendant  had  represented  it  to  be,  the  plaintiff 
could  not  be  allowed  to  show  the  contrary  by  introducing  in  evidence  what  pur- 
ported to  be  a  certified  copy  of  proceedings  had  in  November,  1857,  on  the  pe- 
tition of  certain  stockholders  for  the  re-establishment  of  the  bank.  Lefever  v. 
Lefever,  30  N.  Y.  R.  27. 

In  the  very  recent  case  of  Smith  v.  The  Reese  River  Silver  M.  Co.,  12  Jur. 
N.  S.  616  (April,  1866),  where  a  person  was  induced  to  take  shares  in  a  com- 
pany on  the  faith  of  a  statement  in  the  prospectus,  as  to  the  nature  of  the  prop- 
erty contracted  to  be  purchased,  which  statement  the  promoters  had  no  ground 
for  believing  to  be  true,  and  which  turned  out  to  be  untrue,  Sir  W.  Page 
Wood,  V.  C,  held,  he  was  entitled  to  an  injunction  restraining  the  company 
from  enforcing  calls  against  him,  notwithstanding  the  articles  of  association  to 
which  the  prospectus  referred  would  have  informed  the  purchaser  that  the  state- 
ment in  the  prospectus  was  not  justified.  The  learned  judge  said :  "  He  is  not 
bound  to  call  at  the  office  for  the  mere  purpose  of  ascertaining  whether  the  rep- 
resentations are  false  or  not.  He  was  entitled  to  rely  upon  the  representations 
made  to  him  as  being  true  to  the  knowledge  of  the  directors." 

But  the  party  who  claims  to  be  injured  by  such  fraudulent  practices  of  direc- 
tors and  other  agents  of  corporations  must  bring  his  action  for  relief  at  the  ear- 
liest pi'acticable  opportunity  after  having  learned  the  probable  fact  of  such  fraud- 
ulent practices.  Clarke  v.  Dickson,  1  El.  Bl.  &  El.  148,  s.  c.  5  Jur.  N.  S.  1029  ; 
Hop  &  Malt  Company,  12  Jur.  N.  S.  322.  One  who  purchases  upon  the  facts 
stated  in  a  prospectus  must  be  held  to  have  notice  of  facts  stated  in  other  docu- 
ments expressly  referred  to  unless  there  is  special  grounds  for  presuming  the 
contrary.     lb. 


140  TRANSFER   OF   SHARES.  §  41. 

lar  fraud,  through  the  fradulent  representations  of  the  directors, 
in  their  reports,  as  to  the  prosperous  state  of  the  company's 
affairs,  and  that  the  plantiff  had  thereby  been  induced  to  pur- 
chase five  hundred  shares  in  the  bank,  and  praying  that  the  sale 
might  be  declared  void  as  between  him  and  the  company,  and 
that  they  might  be  decreed  to  repay  the  purchase-money,  it  was 
held,  that  as  the  litigation  was  between  one  member  of  the  part- 
nership and  the  other  members,  the  public  officer  was  improperly 
made  a  party,  as  representing  the  company,  and  a  demurrer  was 
allowed.2 

But  in  a  late  case  before  the  Court  of  Appeal  in  Chancery,  it 
was  decided  that  the  directors  of  a  railway  company  are  in  the 
position  of  trustees,  and  if  the  purchaser  has  not  by  his  own 
conduct  affected  his  rights,  the  company  cannot,  as  against  him, 
retain  money  acquired  from  a  fraudulent  sale  of  their  property  to 
him,  through  the  false  representations  of  their  directors.  But 
the  court  held  that  the  plaintiff  was  not  entitled  to  a  decree 
against  the  directors,  but  was  entitled  to  a  decree  against  the 
company  for  his  money  and  interest.3 

And  it  seems  to  be  settled,  by  the  decision  of  the  House  of 
Lords,  that  in  England  and  in  Scotland,  for  any  fraudulent  act 
done  by  the  directors,  without  the  range  of  the  powers  of  the  com- 
pany, whereby  third  persons  suffer  damage,  they  are  personally 
liable  to  an  action  ;  but  for  all  such  acts  within  the  power  of  the 
body  of  the  shareholders  to  sanction,  although  the  directors  might 
not  Jiave  been  justified  in  what  they  were  doing,  there  could  be 
no  right  of  action.4 

And  a  director  cannot  screen  himself  from  responsibility  for 
any  imposition  which  is  brought  upon  others  by  means  of  the  cir- 

2  Seddon  v.  Connell,  10  Simons,  58.  It  was  further  held,  in  this  case  (10  Si- 
mons, 79),  that  it  is  not  competent  for  the  party  in  such  case  to  file  a  bill  against 
the  company  and  some  of  the  directors,  praying,  that  if  he  is  not  entitled  to  re- 
lief against  the  company,  he  may  have  it  against  the  directors,  and  that  such  a 
bill  is  demurrable,  on  the  ground  that  the  .prayer  for  relief  should  be  absolute, 
for  relief  against  the  directors,  in  order  to  maintain  the  bill  against  them.  But 
it  is  not  necessary  to  make  all  the  parties  to  a  fraud  defendants  in  a  bill  for 
relief. 

8  Conybeare  v.  New  Brunswick  &  Canada  llailw.  &  Land  Company,  6  Jur. 
N.  S.  518. 

4  Davidson  v.  Tulloch,  6  Jur.  N.  S.  543. 


§  41.  PRACTICES   TO   RAISE   TEE   PRICE   OF   STOCK.  141 

dilation  of  a  prospectus  through  his  instrumentality,  upon  the 
ground  that  the  document  is  capable  of  a  construction  by  which 
it  may  be  regarded  as  true.  It  is  for  the  jury  to  say  whether 
that  is  the  natural  sense.5  And  it  is  not  necessary  that  there 
should  have  been  any  direct  communication  between  the  plain- 
tiff and  defendant  in  order  to  subject  the  defendant  to  an  action 
for  false  representation.  If  the  defendant  authorized  the  circu- 
lation of  the  prospectus  before  the  public,  containing  false  repre- 
sentations, by  which  the  plaintiff  was  misled,  it  is  the  same  as  if 
the  defendant  had  made  such  representations  to  him  personally.5 
And  the  fact  that  other  inducements  were  also  held  out  to  plain- 
tiff by  other  parties  by  which  he  was  partially  influenced,  will 
not  excuse  the  defendant.5 

But  the  representation  of  an  officer  of  the  company  as  to  the 
effect  of  deeds,  which  it  forms  no  part  of  his  duty  to  expound, 
will  not  release  the  party  executing  the  deed  from  his  liabil- 
ity.s 

*  3.  The  declaring  of  dividends  by  the  directors,  where  none 
have  been  earned,  if  done  by  them  for  the  purpose  of  fictitiously 
enhancing  the  price  of  shares,  for  their  own  benefit,  is  regarded 
as  such  a  fraud  as  will  relieve  a  party  who  has  purchased  shares 
in  faith  of  such  facts,  at  prices  greatly  beyond  their  value,7  and 
the  transfer  of  the  shares  will  be  set  aside. 

4.  In  this  case,7  Lords  Campbell  and  Brougham  concurred  in 
saying  :  "  Dividends  are  supposed  to  be  paid  out  of  profits  only, 
and  where  directors  order  a  dividend  to  be  paid,  when  no  such 
profits  have  been  made,  without  expressly  saying  so,  a  gross 
fraud  is  practised,  and  the  directors  are  not  only  civilly  liable  to 
those  whom  they  have  deceived  and  injured,  but  are  guilty  of 
conspiracy,  for  which  they  are  liable  to  be  prosecuted  and  pun- 
ished." 

5.  Where  both  parties  labored  under  the  same  delusion  in 
regard  to  the  value  of  stock,  relief  could  not  be  granted,  of 
course,  on  the  ground  of  fraud  in  the  sale,  and  a  court  of  equity 

6  Clark  v.  Dickson,  5  Jur.  N.  S.  1029.  See  also  Nicol  ex  parte,  in  re  Royal 
British  Bank,  5  Jur.  N.  S.  205. 

6  Athenaeum  Life  Ins.  Co.  in  re  Sheffield,  5  Jur.  N.  S.  216;  s.  c.  Johnson, 
Eng.  Ch.  451. 

7  Burnes  v.  Pennell,  2  House  of  Lords'  Cases,  497. 

*61 


142  TRANSFER   OF   SHARES.  §  41. 

will  not  ordinarily  interfere  to  set  aside  a  sale,  on  the  ground  of 
mutual  misapprehension  as  to  the  state  and  condition  of  the 
subject-matter,  unless  in  extreme  cases,  as  where  that  is  sold  as 
valuable  which  is  wholly  valueless,  or  does  not  exist.8  To  con- 
stitute a  fraud  in  such  cases,  it  is  requisite,  ordinarily,  that  the 
parties  should  have  been  upon  unequal  footing  in  regard  to  their 
means  of  access  to  the  knowledge  of  the  true  state  of  the  com- 
pany's funds  and  property,  and  that  the  party  gaining  the  advan- 
tage in  the  bargain  should,  in  some  way,  participate  in  giving 
currency  to  the  false  estimate  of  its  condition,  beyond  the  mere 
fact  of  repeating  the  report  of  the  directors,  where  both  parties 
have  equal  means  of  judging  of  its  correctness. 

6.  It  seems  to  be  regarded  as  settled  law,  that  in  case  of  such 
false  representations  to  raise  the  price  of  stocks,  and  damage 
thereby  sustained,  the  suffering  party  may  maintain  an  action  of 
tort  against  the  party  making  the  false  representation,  although 
it  were  not  made  directly  to  such  injured  party,  there  being  no 
necessity  for  any  privity  between  the  parties  to  support  an  action 
of  tort,  for  a  false  representation.  But,  where  the  action  is  ex 
*  contractu  or  quasi  ex  contractu,  some  privity  is  indispensable  to 
the  maintenance  of  the  action.9 

7.  It  has  recently  been  decided  that  a  bond  fide  sale  and 
transfer  of  property  of  one  company  to  another,  in  consideration 
of  shares  in  the  one  company  being  transferred  to  the  other,  is 
not  such  a  return  of  capital  as  would  be  a  contravention  of  the 
English  statute,  which  is  in  confirmation  of  the  general  rule  of 
law,  prohibiting,  the  conversion  by  corporations  of  capital  into 
income,  and  thus  virtually  reducing  the  stock  of  the  company  be- 
low the  requirements  of  the  charter ;  and  on  the  other  hand  giving 

8  1  Story's  Eq.  Jur.  §  142  ;  Hitchcock  v.  Giddings,  4  Price,  135, 141 ;  2  Kent, 
Comm.  469. 

9  Gerhard  v.  Bates,  20  Eng.  L.  &  Eq.  129.  In  this  case  the  defendant  was 
one  of  the  promoters  and  managing  directors  of  a  joint-stock  company,  and,  in 
offering  the  shares  for  sale,  had  guarantied  a  certain  semi-annual  dividend  to  all 
who  should  purchase,  but  without  any  other  communication  with  the  plaintiff 
personally,  but  the  plaintiff  purchased  upon  the  faith  of  such  general  guaranty 
or  representation ;  and  it  was  held  that  he  could  not  maintain  an  action  upon 
the  guaranty,  but  that  he  might  recover  in  tort,  as  for  a  fraudulent  representa- 
tion.    Post,§  175,  187. 

*62     * 


§42. 


LIABILITY   OF   COMPANY   FOR   NOT   REGISTERING. 


143 


the  shares  of  the  company  a  false  value  in  the  market  by  reason 
of  fictitious  dividends.10 

8.  But  the  bond  fide  purchaser  of  shares  fraudulently  issued 
acquires  the  same  right  as  other  shareholders,  unless  he  buys 
after  the  company  is  in  the  process  of  liquidation ;  and  even  in 
that  case  he  may  come  in  for  his  equal  proportion  of  the  assets, 
by  proving  that  he  bought  of  one  who  was  a  bona  fide  holder  be- 
fore the  company  was  subjected  to  the  process  of  being  wound 
up.11  But  a  bond  fide  sale  of  shares  in  a  company,  entered  into 
after  the  presentation,  but  before  the  first  advertisement  for  wind- 
ing up  the  company,  both  vendor  and  purchaser,  being  ignorant 
that  such  a  petition  was  pending,  was  held  valid  to  have  passed 
the  title.12 

SECTION    XI. 
Liability  of  Company  for  not  registering  Transfers. 


1.  Tlie  company  liable  to  action. 

2.  May  be  compelled  to  record  transfers  by 

mandamus. 

3.  But  not  compellable  to  record  mortgages  of 

shares. 


4.  Grounds  of  denying  mandamus. 

5.  Bill  in  equity  most  appropriate  remedy. 

6.  Rule  of  damages.  • 


§  42.   1.   It  seems  to  be  settled  in  England,  that  an  action  will 

10  Cardiff  C.  &  C.  Co.  in  re  Norton,  11  W.  Rep.  1007.  See  also  McDou- 
gall  v.  Jersey  Imp.  H.  Co.,  10  Jur.  N.  S.  1043.  This  point  of  one  company 
taking  shares  in  another  company  is  discussed,  to  some  extent,  in  the  Court  of 
Chancery  Appeal  in  the  recent  case  of  Great  Western  Railw.  Co.  v.  Metropol- 
itan Co.,  9  Jur.  N.  S.  562.  There  can  be  no  doubt,  as  a  general  rule,  this  will 
not  be  allowed,  unless  by  the  express  sanction  of  legislative  permission.  And  it 
was  here  considered,  that  such  an  express  sanction  will  not  be  construed  to  ex- 
tend to  additional  shares,  issued  by  the  same  company,  and  expressly  required  to 
be  allotted  to  the  existing  shareholders.  Vice- Chancellor  Wood,  when  the  case 
was  before  him,  cited  the  case  of  Solomons  v.  Lang,  12  Beav.  377,  as  establish- 
ing the  right  of  the  defendant  in  the  suit,  to  raise  the  question  of  the  plaintiff's 
right  to  take  these  additional  shares,  beyond  the  amount  which  the  special  leg- 
islative permission  authorized.  The  case  of  the  Attorney-General  v.  The  Great 
Northern  Railw.  Co.,  6  Jur.  N.  S.  1006,  is  also  cited  by  the  learned  judge  as 
analogous  to  the  case  then  before  him. 

11  Barnard  v.  Bagshaw,  1  H.  &  M.  69. 

12  Emmerson's  case,  12  Jur.  N.  S.  494. 


144  TRANSFER   OF   SIIAEES.  §  42. 

lie  against  a  joint-stock  company,  who  neglect  or  refuse,  upon 
proper  request,  to  register  shares  and  deliver  new  certificates, 
after  the  deed  of  transfer  has  been  sent  to  the  secretary.  Dam- 
ages may  be  recovered,  it  seems,  by  reason  of  such  refusal  of  the 
company,  whereby  the  party  is  deprived  of  the  right  to  attend 
and  vote  at  the  meetings  of  the  company,  and  especially  where 
calls  are  made  upon  the  shares,  and  in  consequence  of  nonpay- 
ment the  shares  are  declared  forfeited  and  sold.1 

*  2.  There  can  be  no  question  probably,  in  this  country,  that 
where  the  company  refuse,  on  reasonable  request,  to  make  the 
proper  entry  upon  their  books  of  the  transfer  of  shares,  whereby 
the  owner  is  liable  to  be  deprived  of  any  legal  right,  or  pecuniary 
advantage,  the  company  may  be  compelled  to  do  their  duty,  in 
the  premises,  by  writ  of  mandamus. 

3.  But  it  has  been  held,  that  the  company  are  not  bound  to 
register  trust-deeds,  or  mortgages,  and  especially  such  as  contain 
other  property,  or  the  stock  of  other  companies.  The  mandamus 
was  refused  in  such  a  case,  in  the  Queen's  Bench,  so  late  as 

1  Hodges  on  Railways,  123;  Catchpole  v.  Ambergate  Railw.  Co.,  1  Ellis  & 
Black.  Ill ;  16  Eng.  L.  &  Eq.  163.  See  also  Wilkinson  v.  Anglo  California 
Gold  Co.,  12  Eng.  L.  &  Eq.  444.  In  regard  to  the  right  to  sustain  a  writ  of 
mandamus  in  England,  to  compel  such  transfer,  upon  the  books  of  the  company, 
see  Rex  v.  Worcester  Canal  Co.,  1  M.  &  R.  529 ;  Regina  v.  Liverpool,  Man- 
chester, &  Newcastle-upon-Tyne  Railw.  Co.,  11  Eng.  L.  &  Eq.  408;  Sargent 
v.  Franklin  Insurance  Co.,  8  Pick.  90.  So  also  an  action  on  the  case  will  lie 
for  not  transferring  stock.  The  rule  of  damages,  where  the  stock  has  been  sold, 
as  the  property  of  the  vendor,  is  the  value  of  the  shares  at  the  time  of  the  re- 
fusal, 8  Pick.  90,  or  it  has  sometimes  been  held,  the  highest  value,  between  the 
time  of  refusal  and  the  commencement  of  the  action.  Kartright  v.  Buffalo 
Commercial  Bank,  20  Wend.  91  ;  s.  c.  22  Wend.  348.  And  some  cases  ex- 
tend it  even  to  the  time  of  trial.     But  see  ante,  §  36,  38. 

Where  stock  in  a  railway  is  purchased  and  registered  in  the  name  of  a  mar- 
ried woman,  out  of  her  earnings,  she  and  her  husband  may  sue  jointly  for  divi- 
dends, and  if  she  sue  alone,  it  is  only  ground  of  abatement.  Dalton  v.  Midland 
Railw.  Co.,  20  Eng.  L.  &  Eq.  273. 

Stock  cannot  be  transferred  so  as  to  pass  the  title  after  the  dissolution  of  the 
corporation,  the  shareholders  being  then  only  entitled  to  a  share  in  the  assets. 
James  v.  Woodruff,  2  Denio,  574. 

Where  a  company  have  registered  a  transfer,  which  is  alleged  to  be  a  forgery, 
and  are  threatened  with  a  suit  from  both  the  transferrer  and  transferee,  the 
court  will  not  grant  an  interpleader.  Dalton  v.  Midland  Railw.  Co.,  22  Eng.  L. 
&  Eq.  452. 

*63 


§  42.  LIABILITY   OF   COMPANY  FOR   NOT   REGISTERING.  145 

May,  1856,  and  upon  the  ground,  as  stated,  by  Lord  Campbell, 
Ch.  J.,  that  "  if  the  company  were  bound  to  register  this  deed, 
they  must  become  the  custodians  of  it,  and  must  incur  great 
responsibility  as  to  its  safe  custody,  and  that  therefore  conven- 
ience requires  that  they  should  only  be  bound  to  register  mere 
transfers,  passing  the  legal  title,  and  showing  who  is  the  legal 
owner  of  the  shares."  2 

4.  But  a  mandamus  to  compel  the  registry  of  the  transfer  of 
shares  in  a  railway  company  to  an  infant,3  was  denied.  And 
the  court  of  equity  declined  to  interfere  to  compel  the  registry 
of  the  transfer  of  shares  when  the  company  are  denied  the  oppor- 
tunity of  inspecting  the  certificates  by  their  directors.4 

5.  The  more  effectual,  and  at  present  the  more  usual,  remedy 
against  corporations  for  refusing  to  allow  the  transfer  of  stock 
upon  their  books  into  the  name  of  the  real  owner  is  by  bill  in 
equity.  And  in  one  case,  where  the  party  whose  stock  had  been 
allowed  by  the  bank  to  be  transferred  into  the  names  of  those  who 
had  purchased  it  under  forged  powers  of  attorney  sought  redress 
by  an  action  at  law,  the  court  said,  "  We  cannot  do  justice  to  this 
plaintiff  unless  we  hold  that  the  stocks  are  still  his,"  and  therefore 
denied  the  action  for  the  value  of  the    stocks,  but  allowed  a 

1  Regina  v.  General  Cemetery  Co.,  36  Eng.  L.  &  Eq.  126. 

*  Reg.  v.  Mid.  Counties  &  Sh.  Junction  Railw.  Co.,  9  Law  T.  N.  S.  151. 
But  the  practice  of  compelling  the  registry  of  transfers,  by  mandamus,  seems 
•well  established,  even  where  they  are  not  of  a  character  to  induce  the  most  fa- 
vorable consideration,  as  where  it  was  a  transfer  to  a  pauper  to  enable  the  trans- 
ferror to  get  rid  of  liability,  it  being  intended  to  be  out  and  out,  with  no  secret 
trust  for  the  transferror.  Reg.  v.  Same,  Id.  151.  The  transfer  of  shares  for 
special  purposes  is  so  frequent,  and  the  motives  and  occasions,  are  so  various, 
that  it  could  not  be  expected  to  give  an  abstract  of  all  the  cases.  As  a  general 
rule,  one  who  understandingly  consents  to  have  shares  transferred  in  his  name 
upon  the  public  registry  of  shares,  must  be  content  to  assume  all  the  responsi- 
bility towards  the  public  and  the  other  shareholders  not  connusant  of  the  special 
contract,  which  any  other  shareholder  would  incur.  But  as  between  the  compa- 
ny and  the  purchaser  there  may  be  special  grounds  of  relief.  Coleman  ex  parte, 
1  De  G.  J.  &  Sm.  495  ;  Grady  ex  parte,  Id.  488  ;  Barrett  ex  parte,  10  Jur.  N. 
S.  711  ;    Saunders  ex  parte,  Id.  246. 

Any  transaction  of  this  kind  will  not  be  disturbed,  after  considerable  lapse  of 
time.  Spackman  ex  parte,  10  Jur.  N.  S.  911  ;  Lane  ex  parte,  Id.  25  ;  Spackman 
ex  parte,  reversed,  11  Jur.  N.  S.  207. 

*  East  Wh.  M.  M.  Co.  in  re,  33  Beav.  119. 
vol.  i.  10 


146 


TRANSFER    OF   SHARES. 


§43. 


recovery  for  the  dividends  which  had  been  declared  after  the 
transfer. 

6.  And  there  is  the  same  difficulty  in  compensating  the  pur- 
chaser of  stocks,  where  a  transfer  on  the  books  has  been  denied 
in  an  action  at  law.  In  some  cases  this  has  been  attempted  to 
be  done  by  allowing  the  party  to  recover  the  highest  market  price 
of  the  stock  between  the  refusal  to  transfer  and  the  trial.  But 
the  only  rule  at  all  analogous  to  settled  principle  seems  to  be  that 
the  corporation  shall  pay  the  value  of  the  stock  at  the  date  of  their 
refusal  to  transfer  it,  as  that  is  the  time  when  the  corporation 
became  in  default,  and  when  by  said  default  the  stock,  as  between 
the  parties,  became  theirs.5  The  question  of  the  effect  of  forged 
and  fradulent  transfers  is  very  ably  discussed  by  the  court  of 
Chancery  Appeal  in  Tayler  v.  Great  Indian  Peninsular  Kail- 
way.6 


SECTION   XII, 


When  Calls  become  Perfected. 


1 .  Calls  are  made  when  the  sum  is  assessed, 

notice  may  be  given  afterwards. 

2,  3.  Directors  the  proper  authority  to  make 

calls. 


4.  The   manner    of   giving   notice   and  of 
proof. 


§  43.  1.  The  English  statute  of  1845,  called  the  Companies 
Clauses  Consolidation  Act,  requires  all  calls  to  be  paid  before 
any  valid  transfer  can  be  made.  Under  this  statute,  and  similar 
provisions  in  special  charters,  it  has  often  been  made  a  question, 
when  a  call  "may  be  said  to  be  made.  It  seems  to  be  considered 
that  the  word  call,  in  this  connection,  may  refer  to  the  resolution 
*  of  the  directors,  by  which  a  certain  sum  is  required  to  be  paid 
to  the  company,  by  the  shareholders,1  or  secondly  to  the  notice  to 

5  Pinkerton  v.  M.  &  L.  Railw.,  1  Am.  Law  Reg.  N.  S.  96  ;  s.  c.  42  N.  H.  R.  424. 

6  5  Jur.  N.  S.  1087 ;  s.  c.  4  De  G.  &  J.  559.  See  post,  §  193,  pi.  12.  And 
see  Building  Association  v.  Sendemeyer,  50  Penn.  St.  6  7. 

1  Ex  parte  Tooke,  In  re  The  Londonderry  and  Coleraine  Railw.  Co.,  6  Railw. 
C.  1  (1849)  ;  North  American  Colonial  Association  of  Ireland  v.  Bentley,  19 
L.  J.  (Q.  B.)  427  ;  15  Jur.  187. 

A  resolution  of  the  ttbard  of  directors  requiring  the  stockholders  to  pay  an  in- 
*64 


§  43.  WHEN  CALLS  BECOME  PERFECTED.  147 

the  shareholders  of  the  assessment,  and  the  time  and  place  at 
which  they  will  be  required  to  make  payment,  and  the  amount 
to  be  paid.  But  it  seems  finally  to  be  settled,  that  the  company 
are  not  obliged  to  regard  any  transfer,  made  after  the  resolution 
of  the  directors,  making  the  assessment,  which  need  not  specify 
the  time  of  payment,  but  that  may  be  determined,  by  a  subse- 
quent act  of  the  board.2 

2.  It  seems  the  directors,  and  not  the  company,  are  the  proper 
parties  to  make  calls,  under  the  English  statutes. 

3.  This  seems  to  have  been  decided  upon  the  general  ground 
of  the  authority  of  the  directors.3 

stalment  of  ten  per  cent  every  thirty  days,  on  all  cash  subscriptions,  until  the 
whole  is  paid,  and  that  due  notice  thereof  be  given,  is  admissible  evidence  of 
calls  for  the  whole  subscription.  It  was  here  considered  that  the  words  "  month,'' 
and  "  thirty  days,"  used  in  different  portions  of  the  act,  must  be  considered  of 
the  same  import.  Heaston  v.  Cincinnati  &  C.  R.  R.,  16  Ind.  R.  275  ;  Sands  v. 
Sanders,  2G  N.  Y.  R.  239. 

2  Great  North  of  England  Railw.  Co.  v.  Biddulph,  2  Railw.  C.  401 ;  s.  c.  7 
M.  &  W.  243  ;  Newry  and  Enniskillen  Railw.  Co.  v.  Edmunds,  5  Railw.  C.  275  ; 
s.  c.  2  Exch.  118,  122.  Parke,  B.,  in  The  Ambergate,  &c,  and  Eastern  Junc- 
tion Railw.  Co.  v.  Mitchell,  6  Railw.  C.  235  ;  s.  c.  4  Exch.  540  ;  Regina  v.  Lon- 
donderry &  Coleraine  Railw.  Co.,  13  Q.  B.  998. 

Unless  there  is  something  in  the  subscription,  or  the  charter  and  by-laws 
of  the  company  requiring  notice  of  calls,  or  making  the  subscription  payable 
upon  calls,  it  is  said  in  Lake  Ontario  A.  &  N.  Y.  R.  v.  Mason,  16  N.  Y.  Court 
of  Appeals,  451,  that  it  is  not  indispensable  that  notice  of  calls  should  be 
given  the  subscribers  before  suit.  But  this  seems  contrary  to  the  general 
course  of  decision  upon  the  point,  and  somewhat  at  variance  with  the  idea 
of  a  call,  or  assessment  upon  subscriptions  to  stock.  And  such  seems  to  be 
the  general  understanding  of  the  rule  in  the  American  courts.  But  these 
questions  will  depend  very  much  upon  the  special  provisions  of  the  statutes,  in 
the  different  states,  by  which  the  matter  is  controlled,  and  somewhat  upon  the 
special  terms  of  the  contract  of  subscription.  Heaston  v.  Cincinnati  &  C.  R. 
R.,  16  Ind.  R.  275.  Thus,  in  the  present  case  it  was  held  the  general  railroad 
law  of  Indiana  did  require  notice  and  a  personal  demand  before  proceeding  to 
forfeit  the  stock,  but  not  before  suit  to  recover  instalments  ;  that  as  to  calls  the 
statute  required  the  subscribers  to  take  notice  of  the  action  of  the  directors.  It 
is  further  said,  that  where  the  articles  of  association  or  the  preliminary  articles 
of  subscription,  or  both  combined,  contain  an  undertaking  to  pay  the  amount 
subscribed  on  certain  terms  and  conditions,  an  action  will  lie  to  enforce  the  stip- 
ulations upon  proof  of  the  subscription  and  the  performance  of  the  conditions. 

3  Ambergate,  N.  &  B.  &  Eastern  Junction  Railw.  Co.  v.  Mitchell,  4  Exch. 
540.     Pollock,  Ch.  B.     "  The  next  objection  is,  that  the  directors  made  these 


148  TRANSFER   OF   SHARES.  §  44. 

4.  The  question  of  what  shall  amount  to  a  good  call,  and 
how  the  same  may  be  shown  in  court,  is  considerably  examined 
in  Miles  v.  Bough.4  It  is  here  decided,  that  no  person  could  be 
sued  for  nonpayment  of  a  call  till  he  had  received  due  notice 
thereof,  although  the  statute  did  not  require  notice  in  express 
terms :  that  an  order  to  pay  the  money  at  a  given  broker's  was 
a  good  call ;  that  in  the  declaration  it  was  sufficient  to  allege 
that  the  calls  were  made  and  the  defendant  duly  notified,  with- 
out further  specification  of  particulars ;  and  that  the  jury  may 
infer  sufficient  notice  from  the  fact  of  an  express  promise  to  pay, 
notwithstanding  it  appeared  that  a  defective  notice  had  been  sent, 
unless  it  appeared  that  was  the  only  notice  given,  when  the  case 
must  be  decided  upon  the  sufficiency  of  the  notice  in  fact  given. 


SECTION    XIII. 
Transfer  by  Death,  Insolvency,  or  Marriage. 

1 .  Mandamus  lies  to  compel  the  registry  of  I  4.  Notice  requisite  to  perfect  the  title  of  mart- 

successor.  9a9ee- 

3.  In  case  of  death,  personal  representative    5.  Stock  in  trust  goes  to  new  trustees. 


liable  to  calls. 


6.  Assignees  of  insolvents  not  liable  for  the 
debts  of  the  company. 


§  44.  1.  The  title  to  shares  in  a  railway  is  liable  to  transfer  by 
the  death,  bankruptcy,  or  insolvency  of  the  proprietor,  or  by 
*  marriage  of  the  female  owner  of  such  shares.  In  such  case  the 
English  statute  requires  a  declaration  of  the  change  of  owner- 
ship, to  be  filed  with  the  secretary  of  the  company,  and  the  name 
of  the  new  owner  is  thereupon  requiried  to  be  entered  upon  the 

calls  ;  but  they  were  competent  to  do  so,  as  they  may  do  all  things,  except  such 
as  are  to  be  done  by  the  shareholders  at  a  general  meeting ;  and  there  is  noth- 
ing in  the  act  which  makes  it  necessary  that  the  company  should  make  calls  at 
a  general  meeting." 

Parke,  B.  "  The  directors  may  exercise  all  the  powers  of  the  company  ex- 
cept those  which  are  to  be  exercised  by  the  company  at  their  general  meeting, 
and  the  power  of  making  calls  is  not  such  a  power  as  is  required  to  be  so  ex- 
ercised." 

4  3  Q.  B.  845.     Defective  notice  by  publication  is  not  aided  by  personal  notice 
of  a  shorter  time.     Sands  v.  Sanders,  26  N.  Y.  R.  239. 
*65 


§44.     TRANSFER  BY  DEATH,  INSOLVENCY,  OR  MARRIAGE.     149 

register  of  shareholders.      A  mandamus  will  lie  to  compel  the 
clerk  to  make  the  proper  entry  in  such  case.1 

2.  These  incidents  are  so  much  controlled  by  local  laws,  in 
different  jurisdictions,  that  it  would  scarcely  comport  with  our 
object  to  state  more  than  the  general  principles  affecting  them. 
In  most  of  the  United  States  all  property,  (especially  personal 
estate,  as  railway  shares,)  in  the  first  instance,  upon  the  decease 
of  the  proprietor,  vests  in  his  personal  representative,  in  trust, 
first  for  the  payment  of  debts,  and  afterwards  for  legatees,  or  in 
default  of  tliem,  the  heirs  of  such  proprietor. 

3.  And  so  far  as  regards  voting  upon  such  shares,  the  title  of 
the  executor  or  administrator  will  ordinarily  be  sufficient.  Before 
the  name  of  the  executor  or  administrator  is  entered  upon  the 
books  of  the  company,  as  a  shareholder,  the  estate  only  could  be 
held  liable  for  calls  probably,  and  perhaps  the  same  rule  of  liabil- 
ity would  obtain  after  that.2  But  in  general  where  shares  in  a 
joint-stock  company  are  bequeathed  specifically,  the  legatee  takes 
them  subject  to  all  future  calls.3  But  where  the  payment  of 
future  calls  is  indispensable  to  bring  the  shares  into  the  state  in 
which  the  testator  regarded  them  in  his  will,  such  calls  should 
be  paid  by  the  estate.4 

4.  In  case  of  death  or  insolvency,  the  title  of  a  mortgagee  first 
notified  to  the  company,  will  commonly  have  priority.5  Notice 
to  the  company  is  necessary  to  perfect  the  title  of  a  mortgagee, 
in  case  of  bankruptcy  or  insolvency.6 

1  Rex  v.  Worcester  Canal  Company,  1  M.  &  R.  529. 

2  Fyler  v.  Fyler,  2  Raihv.  C.  873,  s.  c.  3  Beav.  550 ;  Jacques  v.  Chambers,  4 
Railw.  C.  499.  But  the  administrator  or  other  personal  representative  of  a  de- 
ceased shareholder,  may,  under  the  recent  English  statute,  the  Common-law 
Procedure,  maintain  an  action  against  the  company  for  refusal  to  register  his 
name,  as  successor,  to  the  title  to  the  shares,  and  after  having  recovered  damages, 
he  is  entitled  to  a  mandamus  to  compel  the  company  to  register  his  name.  He 
is  also  entitled  to  the  prerogative  writ  of  mandamus  in  such  cases  at  common 
law.     Norris  v.  The  Irish  Land  Co.,  30  Law  Times,  132. 

8  Blount  v.  Hipkins,  7  Sim.  43,  51  ;  Jacques  v.  Chambers,  2  Coll.  435 ;  Clive 
v.  Clive,  Kay,  600;  Wright  v.  Warren,  4  De  G.  &  Sm.  367 ;  Adams  v.  Ferick, 
26  Beav.  384. 

4  Armstrong  v.  Burnet,  20  Beav.  384. 

5  Cumming  v.  Prescott,  2  Yo.  &  Coll.  Eq.  Exch.  488. 

6  But  where  all  parties  are  partners,  notice  will  sometimes  be  implied.     Ex 


150 


TRANSFER   OF   SHARES, 


§45. 


5.  As  to  the  title  of  the  bankrupt,  all  shares  standing  upon  the 
register  of  the  company  in  his  name  will  be  regarded  as  under 
his  control,  order,  and  disposition,  and  will,  under  the  English 
statutes,  go  to  the  assignees.7  But  stock  in  any  incorporated 
company  standing  in  the  name  of  the  bankrupt,  as  trustee,  is  to 
be  transferred  by  the  assignee  to  the  name  of  new  trustees,  and 
a  court  of  chancery  will  so  order.8 

6.  The  assignees  of  an  insolvent  estate,  a  portion  of  whose 
assets  consists  of  shares  in  a  manufacturing  corporation,  are  not 
*  liable  under  special  statutes,  making  shareholders  liable  for  the 
debts  of  the  corporation.  That  is  a  provision  of  positive  law,  and 
is  to  be  construed  strictly.9 


SECTION    XIV. 


Legatees  of  Shares. 


1 .  Entitled  to  election,  interest,  and  new  shares. 

2.  Sfiares  owned  at  date  of  will  pass,  although 

converted  into  consolidated  stock. 


3.  Consolidated  stock  subsequently   acquired 
will  not  pass. 


§  45.  1.  Legatees  of  railway  shares  have  the  election  out  of 
which  class  of  shares  their  legacy  shall  be  paid,  when  there  is 
more  than  one  class  of  the  same  description  found  in  the  will. 
And  they  are  entitled  to  the  income  of  the  shares,  after  the  death 
of  the  testator,  and  to  receive  any  advantage,  by  way  of  new 
shares  resulting  from  the  ownership  of  the  shares.1 

But  a  specific  legatee  of  shares  is  not  entitled  to  a  bonus  on 
such  shares,  declared  after  the  decease  of  the  testator,  but  arising 
out  of  moneys  due  the  company  from  the  testator,  and  which 

parte  Waitman,  2  Mont.  &  Ayr.  364  ;  Duncan  v.  Chamberlayne,  11  Simons,  123 ; 
Etty  ?;.  Bridges,  2  Yo.  &  Coll.  486. 

7  Shelford,  118-121. 

8  Ex  parte  Walker,  1 9  Law  J.  Bank.  3. 

9  Gray  v.  Coffin,  9  Cush.  192. 

1  Jacques  v.  Chambers,  4  Railw.  C.  205  ;  Tanner  v.  Tanner,  5  Railw.  C.  184 ; 
S.  C.  11  Beav.  69.     And  it  is  held  in  this  last  case,  that  upon  a  bequest  of  rail- 
way shares  and  all  right,  title,  and  interest  therein,  money  paid  beyond  the  calls 
will  pass  to  the  legatee. 
*66 


§46.  SHARES  IN   TRUST.  151 

claim  was  compromised  by  his  executors,  but  such  bonus  belongs 
to  the  general  fund  of  personal  estate.2  And  such  legatee  must 
bear  the  calls  which  are  made  after  the  testator's  death,  unless 
there  is  something  in  the  will  to  show  a  different  intent.3 

2.  A  bequest  of  the  testator's  railway  shares,  of  which  he 
should  be  possessed  at  his  decease,  was  held  to  pass  such  rail- 
way shares  specifically  named  in  the  will  as  the  testator  had  at 
the  date  of  his  will,  although  subsequently  converted  into  con- 
solidated stock  of  the  same  company,  by  a  resolution  of  the 
company. 

3.  But  that  other  consolidated  stock  of  the  same  company, 
owned  by  testator  at  his  decease,  did  not  pass  under  the  will, 
the  same  having  been  purchased  after  the  execution  of  his  will.4 


SECTION    XV. 
Shares  in  Trust. 

1,2.   Company  may  safely  deal  with  regis- 1  3.  But  equity  will  protect  the  rights  of cestais 
tered  owner.  que  trust. 

§  46.  1.  By  the  English  statute,  railway  companies  are  not 
bound  to  see  to  the  execution  of  trusts  in  the  disbursement  of 
*  their  dividends,  but  are  at  liberty  to  treat  the  person  in  whose 
name  the  shares  are  registered  as  the  absolute  owner.  It  would 
seem  that  in  case  of  the  bankruptcy  of  a  shareholder  in  a  joint- 
stock  company,  a  court  of  equity  will  sometimes  protect  trust 
funds,  although  registered  in  the  name  of  the  bankrupt,  both 
from  the  claim  of  the  assignee  and  the  company,  who  have 
made  advances  to  the  nominal  owner,  upon  the  faith  of  his  be- 
ing the  true  owner,  but  without  any  pledge  of  the  stock.1 

a  Maclaren  v.  Stainton,  6  Jur.  N.  S.  360 ;  Loch  v.  Venables,  6  Jur.  N.  S. 
238. 

3  Day  v.  Day,  6  Jur.  N.  S.  365. 

*  Oakes  v.  Oakes,  9  Hare,  666. 

1  Pinkett  v.  Wright,  2  Hare,  120.  This  is  a  very  elaborate  opinion  of  the 
learned  Vice-Chancellor  Wigram,  upon  the  subject  of  protecting  the  interest  of 
cestuis  que  trust  in  the  stock*of  a  banking  company,  standing  in  the  name  of  a 

*67 


152  TRANSFER  OF  SHARES.  §  46  a. 

2.  In  general,  in  this  country,  it  is  believed  railway  companies 
will  be  protected  in  dealing  bond  fide  with  the  person  in  whose 
name  shares  are  registered  on  the  books  of  the  company,  as  the 
absolute  owner,  notwithstanding  any  knowledge  they  may  have 
of  the  equitable  interest  of  third  parties. 

3.  But  there  can  be  no  question,  a  court  of  equity  will  always 
protect  the  interest  of  a  cestui  qui  trust,  when  it  can  be  done 
without  the  violation  of  prior  or  superior  equities,  which  have 
bond  fide  attached. 


SECTION    XVI. 

The  extent  of  Transfer  requisite  to  exempt  from  claim  of 

Creditors. 

1.  Bow  transfer  of  stock   perfected  as  to  j  3,  4.  In  some  of  the  states  no  record  required. 

creditors.  n.  3.  Question  further  considered. 

2.  Reasonable  time  allowed  to  record  transfer.  I 

§  46.  a.  1.  The  question  of  what  constitutes  a  valid  transfer 
of  shares  in  a  joint-stock  corporation,  so  as  to  exempt  them  from 
attachment  and  levy  by  creditors  of  the  transferror,  is  considerably 
discussed  in  a  recent  case  in  New  Hampshire  by  a  judge  of  large 
experience,  and  the  result  reached,  that  upon  a  pledge  of  stock 
in  a  railway  corporation  in  New  Hampshire,  there  should  be  such 
delivery  as  the  nature  of  the  thing  is  capable  of,  and  to  be  good 
against  a  subsequent  attaching  creditor  the  pledgee  must  be 
clothed  with  all  the  usual  muniments  and  indicia  of  ownership  ; 
that  by  the  laws  of  New  Hampshire,  a  record  of  the  ownership  of 

trustee  who  had  become  bankrupt.  The  trustee  was  also  the  proprietor  of  shares 
in  his  own  right,  all  standing  in  his  name,  without  anything  on  the  books  of  the 
company  to  distinguish  which  were  trust  funds. 

It  was  held  that  the  trustee  must  be  presumed  to  have  pledged  such  stock  as 
belonged  to  himself  and  not  that  of  his  cestuis  que  trust,  and  that  shares  which 
stood  in  the  name  of  the  trustee  at  the  time  of  the  bankruptcy,  and  thencefor- 
ward remained  in  his  name,  might  fairly  be  presumed  to  be  identical  with  those 
in  which  the  trust  funds  were  invested,  the  number  of  shares  being  the  same. 

Notice  to  the  company  is  indispensable  to  create  an  equitable  mortgage  of 
railway  shares.     Ex  parte  Boulton  v.  Skelehley,  29«Law  Times,  71. 


§46(2.  TRANSFER   EXEMPT   FROM   CREDITORS.  153 

shares  must  be  kept,  by  domestic  corporations,  within  the  state, 
and  by  officers  resident  there  ;  and  that  on  the  transfer  of  stock 
the  delivery  will  not  be  complete,  as  to  creditors,  until  an  entry  is 
made  upon  such  stock-record,  or  it  be  sent  to  the  office  for  that 
purpose,  and  the  omission  thus  to  perfect  the  delivery  will  be 
prima  facie,  and  if  unexplained  conclusive  evidence  of  a  secret 
trust,  and  therefore,  as  matter  of  law,  fraudulent  and  void  as  to 
creditors.1 

2.  But  in  the  case  last  cited  it  is  said  that  when2  the  transfer 
is  made  at  a  distance  from  the  office  and  the  old  certificate  sur- 
rendered and  a  new  one  given  by  a  transfer  agent  residing  in  a 
neighboring  state,  proof  that  the  proper  evidence  of  such  transfer 
was  sent  by  the  earliest  mail  to  the  keeper  of  the  stock  record 
to  be  duly  entered,  although  not  received  until  an  attachment 
had  intervened,  would  be  a  sufficient  explanation  of  the  want  of 
delivery  and  the  transfer  would  be  good  against  the  creditor. 
Any  unreasonable  delay  in  perfecting  the  record  title  to  such 
shares  leaves  them  liable  to  the  claims  of  creditors. 

3.  But  where  the  charter  of  the  company  or  the  general  laws 
of  the  state  contain  any  specific  restriction  or  requirement  in  re- 
gard to  the  transfer  of  shares,  it  must  be  complied  with  or  the 
title  will  not  pass.2 

4.  In  a  recent  case  in  New  Jersey,3  it  seems  to  be  considered 
that  nothing  more  is  required  to  make  an  effectual  transfer  of 
stock  in  a  bank,  even  as  against  creditors,  than  an  assignment  of 

1  Pinkerton  v.  Manchester  &  Lawrence  Railw.,  1  Am.  Law  Reg.  N.  S.  96  ; 
s.  C.  42,  N.  H.  R.  424. 

8  Fisher  v.  Essex  Bank,  5  Gray,  373  ;  Sabin  v.  Bank  of  Woodstock,  21  Vt. 
R.  362  ;  Pittsburgh  &  Connellsville  R.  Co.  v.  Clarke,  29  Penn.  St.  146. 

3  Broadway  Bank  v.  McElrath,  2  Beasley,  24.  We  think  it  proper  to  say, 
that  there  is  considerable  difference  in  the  decisions  of  the  different  states  as  to 
the  point  of  time  from  which  the  transfer  of  equitable  titles  is  to  be  reckoned,  as 
between  purchasers  for  value  and  creditors.  It  is  generally  considered  that  the 
transfer  takes  effect  from  the  date  of  notice  to  the  trustee,  who  holds  the  legal 
title,  subject  to  all  equities,  and  these  do  not  attach  ordinarily  until  after  notice 
brought  home  to  the  trustee.  Some  of  the  states  regard  the  equitable  rights  of 
the  purchaser  as  dating  from  the  period  of  the  actual  purchase,  provided  notice 
to  the  trustee  be  given  within  reasonable  time  after.  We  have  discussed  the 
question  and  the  cases,  to  some  extent,  in  Rice  v.  Courtis,  32  Vt.  R.  460  ;  1  Story 
Eq.  Ju.  400  b,  Redf.  Ed. 


154  TRANSFER  OF  SHARES.  §  46  a. 

the  certificates  and  a  delivery  to  the  assignee,  and  that  this  will 
be  regarded  as  effectual  against  an  attaching  creditor  without 
notice,  even  where  the  charter  of  the  company  declares  the  stock 
personal  estate,  and  provides  that  "  it  shall  be  transferable  upon 
the  books  of  the  corporation,"  and  also,  "  that  books  of  transfer 
of  stock  shall  be  kept,  and  shall  be  evidence  of  the  ownership  of 
said  stock  in  all  elections  and  other  matters  submitted  to  the  de- 
cision of  the  stockholders." 


§47. 


PARTY   LIABLE   FOR   CALLS. 


155 


♦CHAPTER    IX 


ASSESSMENTS    OR   CALLS. 


SECTION    I. 


Party  liable  for  Calls. 


1 .  Tlie  party  upon  the  register  liahlefor  calls. 

2.  Bankrupts  remain  liable  for  calls. 

3.  Cestuis  que  trust  not  liable  for  calls  in 

law  or  equity. 


4.  Trustee  compelled  to  pay  for  shares. 

5.  One  on  registry  may  show  his  name  im- 

properly placed  there. 


§  47.  1.  It  seems  to  be  settled  law  that  the  registered  owner 
of  railway  shares  is  liable  for  all  calls  thereon,  so  long  as  his 
name  remains  upon  the  register.1  The  effect  of  the  transfer  of 
railway  scrip  is  only  to  convey  an  equitable  interest  in  the  shares, 
with  the  right  to  have  the  shares  formally  assigned  to  him,  and 
his  name  entered  upon  the  register  as  a  shareholder.1 

2.  In  case  of  bankruptcy,  the  bankrupt  remains  liable  for 
all  calls,  unless  the  names  of  the  assignees  are  registered  on 
the  books  of  the  company,  as  this  is  not  regarded  as  a  debt 

1  Midland  Great  Western  Railw.  Co.  v.  Gordon,  5  Railw.  C.  76  ;  s.  c.  16  M. 
&  W.  804  ;  Mangles  v.  Grand  Collier  Dock  Co.,  2  Railw.  C.  359 ;  Sayles  v. 
Blane,  6  Railw.  C.  79  ;  West  Cornwall  R.  v.  Mowatt,  15  Q.  B.  521.  In  this  case 
it  was  said,  even  if  the  transaction  by  which  the  title  to  the  stock  and  the  reg- 
istry of  defendant's  name  were  made,  were  illegal,  it  could  not  avail  him  in  an 
action  for  calls.     See  post,  §  236. 

Long  Island  R.  Co.,  19  Wend.  37  ;  Mann  v.  Currie,  2  Barb.  294 ;  Hartford  & 
N.  H.  R.  v.  Boorman,  12  Conn.  R.  530;  Mann  v.  Cooke,  20  Conn.R.  178;Rose- 
velt  v.  Brown,  1  Kernan,  148.  The  registry-book  of  shareholders  is  prima  facie 
evidence  of  the  liability  of  those  whose  names  appear  upon  it,  td  calls,  although 
irregularly  kept.  Birmingham  R.  v.  Locke,  1  Q.  B.  256  ;  London  Grand  J.  R. 
v.  Freeman,  2  M.  &  G.  606  ;  Same  v.  Graham,  1  Q.  B.  271 ;  Aylesbury  R. 
v.  Thomson,  2  Railw.  C.  668.  This  last  case  holds  that  the  purchaser  of  shares 
is  only  liable  for  calls  made  after  his  name  is  upon  the  register.  The  company 
may,  by  its  charter,  and  probably  by  a  by-law,  provide  that  the  original  sub- 
scriber shall  be  holden  for  all  calls,  or  until  a  certain  amount  is  paid  in.  Vicks- 
burg,  Shreveport,  &  Texas  Railw.  v.  McKeen,  14  La.  Ann.  724. 

*68 


15P>  ASSESSMENTS   OR   CALLS.  §  47. 

payable  in  future,  and  which  may  be  proved  under  the  commis- 
sion.2 

*  3.  The  trustee  of  shares,  whose  name  appears  upon  the  books 
of  the  company,  is  alone  liable  for  calls,  and  the  company  have 
no  remedy  in  equity  for  calls  against  the  cestui  que  trust? 

But  if  a  shareholder  when  the  company  is  in  extremis  makes 
a  colorable  transfer  to  an  irresponsible  person,  it  will  not  be 
held  to  relieve  him  from  liability  to  contribute.4  But  in  the 
absence  of  fraud  or  mala  fides  the  cestui  que  trust  cannot  be  sub- 
jected to  a  call,  although  he  may  be  compelled  to  indemnify  his 
trustee.5  But  it  seems  finally  to  be  settled  in  the  English  Court 
of  Chancery,  that  a  shareholder  may  transfer  his  shares  in  an 
abortive  company,  where  such  shares  pass  by  delivery  to  an  in- 
solvent person,  for  the  purpose  of  getting  rid  of  liability  to  con- 
tribute to  its  responsibilities,  provided  the  transaction  be  a  real 
one,  and  not  a  false  or  hollow  contrivance.6  But  where  the  trans- 
action exhibits  no  motive  except  escape  from  the  liability  of  the 
company,  and  especially  where  it  transpires  after  the  company  is 
publicly  declared  insolvent,  it  will  be  regarded  as  merely  color- 
able and  not  valid.7  But  where  the  holder  of  shares  threatened 
to  put  the  company  into  insolvency  unless  the  directors  would 
find  some  one  to  purchase  his  shares  and  give  him  an  indemnity, 
which  was  done  twelve  months  before  the  company  became  in- 
solvent, it  was  held  to  be  a  valid  transfer.8  Trustees  under  a 
will  are  properly  made  contributories.9 

2  South  Staffordshire  R.  v.  Burnside,  2  Eng.  L.  &  Eq.  418;  s.  c.  5  Exch. 
129;  6  Kailw.  C.  611. 

3  The  Newry,  W.  &  K.  R.  v.  Moss,  4  Eng.  L.  &  Eq.  34  ;  s.  c.  14  Beav. 
64.  But  where,  in  winding  up  the  affairs  of  a  company,  the  name  of  one  of  the 
members,  who  had  obtained  his  certificate  since  the  expenses  were  incurred, 
was  placed  among  the  contributories,  it  was  held  he  was  not  liable.  Chappie's 
case,  17  Eng.  L.  &  Eq.  516  ;  s.  c.  5  De  Gex  &  S.  400. 

*  Lund  ex  parte,  27  Beav.  465  ;  Hyam  ex  parte,  6  Jur.  N.  S.  181  ;  s.  c.  1  De 
G.  F.  &  J.  75.  See  also  De  Pass's  case,  4  De  G.  &  J.  544 ;  Chinnock  ex  parte, 
1  Johns.  Eng.  Ch.  714.     Post,  §  242. 

6  Electric  Tel.  Co.  v.  Bunn,  6  Jur.  N.  S.  1223. 

6  Mexican  &  South  Am.  Co.  in  re,  2  De  G.  F.  &  J.  302 ;  Slater  ex  parte,  12 
Jur.  N.  S.  242. 

7  Electric  TeV  Co.  in  re,  30  Beav.  143. 

8  Phoenix  Life  Assurance  Co.,  7  Law  T.  N.  S.  267. 
Drummond  ex  parte,  2  Gif.  189  ;  s.  C.  6  Jur.  N.  S.  908. 

*69 


§48. 


COLORABLE   SUBSCRIPTIONS. 


157 


4.  The  trustee,  into  whose  name  the  cestui  que  trust  had 
caused  shares  to  be  transferred  by  deed,  reciting  that  the  price  of 
the  same  had  been  paid  to  the  vendor,  who  executed  the  deed, 
may  nevertheless  be  compelled  to  make  good  such  price  to  the 
vendor,  if  it  were  not  in  fact  paid,  although  he  accepted  the 
transfer  in  the  belief  that  it  had  been  paid.10 

5.  Notwithstanding  the  defendant's  name  appear  upon  the 
register  of  shares,  he  will  be  permitted,  in  a  suit  for  calls,  to 
show  that  it  was  illegally  placed  there,  and  without  his  authori- 
ty ;  but  a  purchaser  of  shares,  or  even  an  original  subscriber, 
cannot  be  sued  for  calls,  under  the  English  statute,  until  his 
name  is  placed  on  the  registry.11  But  one's  name  appearing 
upon  the  books  of  the  company  as  a  shareholder  is  primd  facie 
evidence  of  the  fact,  in  an  action  against  such  person  to  enforce 
against  him  the  personal  responsibility  of  a  stockholder  for  the 
debts  of  the  company.12  And  in  such  an  action  the  judgment 
against  the  corporation  is  prima  facie  evidence  of  its  indebted- 
ness as  against  the  stockholder.12 


SECTION    II. 


Colorable  Subscriptions. 


1.  Colorable  subscriptions  valid. 

2.  Directors  may  be  compelled  to  register  them. 

3.  Oral  evidence  to  vary  the  written  subscrip- 

tion inadmissible. 


4.  Register  evidence  although  not  made  in  the 

time  presa-ibed. 

5.  Confidential  subscriptions  void. 


§  48.  1.  Equity  will  not  restrain  a  railway  company  from  en- 
forcing calls,  by  action  at  law,  upon  the  ground  that  one  of  the 
conditions  of  the  charter,  requiring  a  certain  amount  of  subscrip- 
tions of  stock  before  the  incorporation  took  effect,  had  not  been 
complied  with,  but  that  a  fraud  upon  the  provision  had  been 
practised  by  means  of  colorable  subscriptions.  The  Court  of 
Chancery  regards  colorable  subscriptions,  made  in  the  course  of 

10  Wilson  v.  Keating,  27  Beav.  121. 

11  Hodges  on  Railways,  101,  4th  ed.  Newry  &  Inniskillen  Railw.  v.  Edmunds, 
2  Exch.  118. 

12  Hoagland  v.  Bell,  36  Barb.  57. 


158  ASSESSMENTS   OR   CALLS.  §  48. 

getting  a  bill  through  the  House  of  Lords,  (to  comply  with  one 
of  the  standing  rules  of  that  house,  requiring  three  fourths  of  the 
requisite  outlay  to  be  subscribed  before  the  bill  passes,)  to  be 
binding  upon  the  directors  and  managers,  who  make  the  same, 
and  that  they  are  in  fact  valid  and  binding  subscriptions,  although 
such  subscriptions  were  made  with  the  purpose  of  being  subse- 
quently cancelled,  and  had  never  been  registered  upon  the  books 
of  the  company,  or  any  calls  made  upon  them. 

2.  It  is  within  the  proper  range  of  the  powers  of  a  court  of 
equity  to  compel  the  directors  to  register  such  shares  and  enforce 
the  payment  of  calls  upon  them.1 

In  a  recent  case 2  where  this  subject  came  under  discussion  in 

1  Preston  v.  Grand  Collier  Dock  Co.,  2  Railw.  C.  335  ;  Mangles  v.  The  Same, 
id.  359.  The  principle  of  these  cases  is  very  distinctly  recognized  in  the  case  of 
Blodgett  v.  Morrill,  20  Vt.  R.  500,  and  it  lies  at  the  foundation  of  all  fair  dealing, 
that  one  is  bound  by  his  own  representations,  upon  which  he  had  purposely  in- 
duced others  to  act,  although  at  the  time  he  did  not  intend  to  be  himself  bound 
by  them,  but  expected,  through  favor,  to  be  relieved  from  their  performance. 
See  also  Henry  v.  Vermilion  R.  Co.,  17  Ohio,  187.  But  if  one  obtain  shares 
in  a  distribution  by  commissioners  by  fraud,  he  may  be  compelled,  in  equity,  to 
surrender  them  to  other  subscribers,  to  whom  they  would  have  been  awarded 
but  for  such  fraud.     Walker  v.  Devereaux,  4  Paige,  229. 

A  subscription  to  the  stock  of  a  railway  made  in  the  common  form  upon  the 
books  of  the  company,  the  subscriber  at  time  of  subscription  taking  the  following 
writing,  signed  by  the  clerk  of  the  company,  by  order  of  the  directors :  — 

"  In  consideration  that  Ebenezer  E will  subscribe  for  thirty  shares  in  the 

White  Mountains  Railway,  said  company  agree  to  release  him  from  twenty-five  of 
said  shares,  or  such  portion  of  said  twenty-five  shares,  as  he  may  within  one  year 
elect  to  withdraw  from  his  subscription,  and  if  he  has  been  assessed,  and  has  paid 
anything  on  said  shares,  that  he  elects  to  be  released  from,  that  these  payments 
shall  be  allowed  him,  on  the  shares  that  he  retains,  and  that  the  treasurer  shall 
regulate  his  stock  accounts  and  assessments  accordingly,"  is  a  valid  subscription 
for  the  thirty  shares,  it  having  been  understood,  at  the  time  of  making  the  sub- 
scription, between  the  subscriber  and  the  directors,  that  the  same  was  to  be  held 
out  to  the  public,  as  a  bonafi.de  subscription  for  the  thirty  shares,  and  no  disclos- 
ure made  of  the  writing  given  to  the  subscriber. 

It  was  held  that  the  agreement  to  release  the  subscriber  was  a  fraud  upon 
other  subscribers,  and  void,  and  the  subscription  may  be  enforced.  White 
Mountains  Railw.  v.  Eastman,  34  New  II.  R.  124;  Downie  v.  White,  12 
Wise.  17G. 

See  also  Conn.  &  Pass.  Rivers  R.  v.  Bailey,  24  Vt.  R.  465  ;  Mann.  v.  Pentz, 
2  Sand.  Ch.  257 ;  Penobscot  &  Kennebec  R.  v.  Dunn,  39  Maine  R.  601. 

2  North  Shields  Quay  Co.  v.  Davidson,  4  Kay  &  J.  688. 


§  48.  COLORABLE   SUBSCRIPTIONS.  159 

equity,  it  was  held  that  where  the  provisional  directors,  in  the 
process  of  carrying  a  bill  through  parliament,  proposed  to  the 
contractor  that  he  should  have  the  contract  for  the  company's 
works,  provided  he  would  accept  payment  partly  in  shares,  the 
number  to  be  settled  by  the  company's  engineer;  but  con- 
tracted for  him  to  sign  for  a  sufficient  number  of  shares  to  make 
up  the  amount  required  by  the  standing  orders  of  parliament, 
which  was  630  of  X10  each,  which  he  accordingly  subscribed 
and  the  bill  passed  ;  but  when  the  contract  was  closed  he  was  to 
take  but  800  shares,  the  scheme  being  abandoned  before  the 
works  were  commenced,  it  was  held  that  the  arrangement  made 
by  the  directors  with  the  contractor  was  ultra  vires  ;  and  if  not 
a  fraud  upon  the  orders  of  parliament  it  was  void  as  against  such 
subscribers  as  were  not  privy  to  it ;  and  that  the  circumstance  of 
the  contractor  having  subscribed  the  deed  last  but  one,  and  the 
last  subscriber  being  privy  to  the  arrangement,  did  not  alter  the 
rights  of  those  subscribers  who  were  not  privy  to  it ;  and  that  the 
contractor  was  liable,  as  a  contributory,  for  the  entire  number  of 
shares  for  which  he  signed  the  deed. 

*  3.  Oral  evidence  is  inadmissible  to  vary  the  terms  of  a  sub- 
scription to  the  stock  of  a  railway  unless  it  tend  to  show  fraud  or 
mistake.3  But  where  the  subscriber  is  really  misled,  and  induced 
to  subscribe  for  stock,  upon  the  representation  of  a  state  of  facts 

3  Wight  v.  Shelby  Railw.,  16  B,  Monroe,  5;  Blodgett  v.  Morrill,  20  Vt.  R. 
509  ;  Kennebec  &  Portland  R.  v.  Waters,  34  Maine  R.  369.  But  mere  mistake, 
or  misapprehension  of  the  facts,  by  the  subscriber,  is  no  ground  of  relief  unless 
it  amount  to  fraud  and  imposition,  brought  about  by  some  agent  of  the  company. 
Hence  where  one  subscribed  for  shares  in  a  railway,  under  the  mistaken  belief 
that  he  might  forfeit  his  stock  at  will,  and  be  no  further  liable,  he  was  held  liable, 
notwithstanding  this  belief  was  the  result  of  assurances  made  by  the  person  taking 
the  subscription  at  the  time  of  its  being  made,  that  such  were  the  terms  of  sub- 
scription secured  by  the  charter,  such  assurances  being  founded  in  mistake,  and 
not  wilfully  false.  Railroad  Company  v.  Roderigues,  10  Rich.  (S.  C.)  278; 
N.  C.  Railw.  v.  Leach,  4  Jones  Law,  340.  It  is  here  said,  that  one  of  the 
commissioners,  hi  taking  subscriptions  to  the  stock  of  a  railway  company,  has  no 
right  to  give  any  assurances  as  to  the  line  of  location  which  will  be  adopted. 
And  if  the  location  is  different  from  that  provided  in  the  charter  of  the  company, 
the  party  may  lose  the  right  to  object  to  paying  his  subscriptions  on  that  ground, 
unless  he  resort  to  mandamus  or  injunction,  at  the  earliest  convenient  time. 
Booker  ex  parte,  18  Ark.  R.  338;  Brownlee  v.  Ohio,  Ind.  &  El.  Railw.,  18 
Ind.  R.  68. 

*  70 


160  ASSESSMENTS   OR   CALLS.  §  48. 

in  regard  to  the  time  of  completing  the  road,  or  its  location  made 
by  those  who  take  up  the  subscription,  and  in  good  faith,  and  upon 
proper  inquiry,  and  the  exercise  of  reasonable  discretion,  believed 
by  the  subscriber,  and  which  constitutes  the  prevailing  motive 
and  consideration  for  the  subscription,  and  which  proves  false, 
it  would  seem  that  the  contract  of  subscription  should  be  held 
void,  both  in  law  and  equity.4 

4.  When  the  statute  requires  the  registry  of  shares  to  be  made 
within  a  limited  time,  such  requirement  is  regarded  as  merely 
directory,  and  the  registry,  although  not  made  within  the  pre- 
scribed time,  will  still  be  competent  evidence,  and  to  the  same 
extent  as  if  made  within  the  time  required.5 

5.  Where  subscriptions  are  made  under  an  agreement  that 
they  are  not  to  be  binding  unless  a  specified  sum  is  subscribed,  it 
is  essential  that  there  should  be  no  conditions  as  to  the  liability 
of  any  of  the  subscribers  not  applicable  to  all.  Confidential  sub- 
scriptions made  for  the  purpose  of  making  up  the  required  sum 
are  a  fraud  upon  the  other  subscribers  ;  and  should  not  be  treated 
as  valid  subscriptions.  Where  by  deducting  such  confidential 
subscriptions  the  required  sum  is  not  subscribed  the  contract 
of  subscription  does  not  become  operative,  so  as  to  bind  the  sub- 
scribers. Parol  evidence  is  admissible  to  show  that  certain  of 
the  subscriptions  were  confidential  in  character  and  therefore 
fraudulent.6 

4  Henderson  v.  Railway  Company,  17  Texas  R.  560. 

5  Wolverhampton  N.  W.  Co.  v.  Hawksford,  7  C.  B.  N.  S.  795 ;  6  Jur.  N.  S. 
632.  Affirmed  in  Exch.  Chamber,  10  W.  Rep.  153,  11  C.  B.  N.  S.  456,  8  Jur. 
N.  S.  844. 

6  New  York  Exchange  Co.  v.  De  Wolf,  31  N.  Y.  273. 


§49. 


MODE   OF   ENFORCING   PAYMENT. 


161 


SECTION    III. 


Mode  of  enforcing  Payment. 


1.  Subscription  to  indefinite  stock,  raises  no 

implied  promise  to  pay  the  amount  as- 
sessed. 

2.  If  shares  are  definite,  subscription  implies 

a  promise  to  pay  assessj?ients.     Right  of 
forfeiture  a  cumidative  remedy. 

3.  WJiether  issuing  new  stock  will  bar  a  suit 

against  subscriber,  quozre. 

4.  It  would  seem  not. 

5.  But  the  requirements  of  the  charter  and 

general  laws  of  the  state,  must  be  strict- 


ly pursued  in  declaring  forfeiture  of 
stock. 

6.  Notice  of  scde  must  name  place. 

7.  Validity  of  cedls  not  affected  by  miscon- 

duct of  directors  in  other  matters. 

8.  Proceedings  must  be  regular  at  date. 

9.  Acquiescence  will  estop  the  party,  often. 

10.  Forfeiture  of  shares. 

1 1 .  Irregular  calls  must  be  declared  void,  be- 

fore others  can  be  made  to  supply  the 
place. 


§  49.  1.  The  company  may  resort  to  all  the  modes  of  enforc- 
ing payment  of  calls  which  are  given  them  by  their  charter,  or 
the  general  laws  of  the  state,  unless  these  remedies  are  given  in 
the  alternative.  But  the  principal  conflict  in  the  cases  seems  to 
arise  upon  the  point  of  maintaining  a  distinct  action  at  law  for 
the  amount  assessed.  Many  of  the  early  turnpike  and  manu- 
facturing companies,  in  this  country,  did  not  create  any  definite, 
or  distinct  *  capital  stock,  to  consist  of  shares  of  a  definite  amount, 
in  currency,  but  only  constituted  the  subscribers  a  body  corporate, 
leaving  them  to  raise  their  capital  stock,  in  any  mode  which  their 
by-laws  should  prescribe.  And  in  some  such  cases,  the  charter, 
or  general  laws  of  the  state,  gave  the  company  power  to  assess 
the  subscribers  according  to  the  number  of  shares  held  by  each. 
But  the  amount  of  the  shares  was  not  limited.  The  assessments 
might  be  extended  indefinitely,  according  to  the  necessities  of 
the  company.  In  such  cases,  where  the  only  remedy  given,  by 
the  deed  of  subscription,  the  charter  and  by-laws,  or  the  general 
laws  of  the  state,  was  a  forfeiture  of  the  shares,  the  courts  gen- 
erally held,  that  the  subscriber  was  not  liable  to  an  action  in 
personam  for  the  amount  of  calls.1     And  this  seems  to  us  alto- 

1  Franklin  Glass  Co.  v.  White,  14  Mass.  R.  286 ;  Andover  Turnpike  Co.  v. 
Gould,  6  Mass.  R.  40 ;  Same  v.  Hay,  7  id.  102 ;  New  Bedford  Turnpike  Co.  v. 
Adams,  8  id.  138  ;  Bangor  House  Proprietary  v.  Hinckley,  3  Fairfield,  385,388  ; 
Franklin  Glass  Co.  v.  Alexander,  2  New  Hamp.  R.  380.     But  where  there 

VOL.  I.  11  *  71 


162  ASSESSMENTS    OR    CALLS.  §49. 

gether  reasonable  and  just.  For  if  a  subscription  to  an  indefi- 
nite stock  created  a  personal  obligation  to  pay  all  assessments 
made  by  the  company  upon  such  stock,  it  would  be  equivalent 
to  a  personal  liability  of  the  stockholders  for  the  debts  and  liabil- 
ities of  the  company ;  as  we  shall  see,  hereafter,  that  the  directors 
of  a  corporation  may  be  compelled,  by  writ  of  mandamus,  to 
make  calls  upon  the  stock,  for  the  purpose  of  paying  the  debts  of 
the  company.2 

2.  But  where  the  stock  of  the  company  is  defined  in  their  char- 
ter, and  is  divided  into  shares  of  a  definite  amount  in  money,  a 

■was  an  express  promise  to  pay  assessments,  or  facts  from  which  such  an  under- 
taking was  inferable,  it  was  always  held,  even  in  this  class  of  cases,  that  an  action 
will  lie.  Taunton  &  South  Boston  Turnpike  Co.  v.  Whiting,  10  Mass.  R.  327  ; 
Bangor  Bridge  Co.  v.  McMahon,  1  Fairfield,  478.  But  a  subscriber  to  the  stock 
of  a  turnpike  company,  who  promised  to  pay  assessments,  when  afterwards  the 
course  of  the  road  was  altered  by  law,  was  held  thereby  exonerated.  Middlesex 
Turnpike  Co.  v.  Swan,  10  Mass.  R.  384.  The  citation  of  cases  to  these  points 
might  be  increased  indefinitely,  but  it  is  deemed  useless,  as  these  propositions 
have  never  been  questioned.     "Worcester  Turnpike  v.  Willard,  5  Mass.  80. 

The  following  cases  will  be  found  to  confirm  the  cases  cited  above.  Chester 
Glass  Co.  v.  Dewey,  16  Mass.  R.  94 ;  Newburyport  Bridge  Co.  v.  Story,  6  Pick. 
45  ;  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23 ;  Ripley  v.  Sampson,  10  id.  371  ; 
Cutler  v.  Middlesex  Factory  Co.,  14  id.  483.  This  general  question  of  the 
responsibility,  assumed  by  those  who  consent  to  become  shareholders  in  a  cor- 
poration, where  the  shares  are  not  fully  paid  up,  is  considerably  discussed,  by 
Allen,  J.,  in  a  recent  case  in  the  N.  Y.  Court  of  Appeals,  where  the  facts  being 
peculiar,  it  was  held  the  shareholder  incurred  no  obligation  to  pay  the  balance 
due  upon  the  shares  if  he  elected  to  abandon  it.  Seymour  v.  Sturgess,  26  N. 
Y.  R.  134.  But  there  is  no  implication  of  duty  to  pay  the  amount  of  a  subscription 
to  the  stock  of  a  railway  company,  especially  where  the  terms  of  subscription 
declare  payment  to  be  made  in  such  instalments  as  shall  be  required  by  the 
board  of  directors,  unless  the  declaration  and  proof  show  that  an  instalment  had 
been  required  by  the  directors.  Gebhart  v.  Junction  Railw.  Co.,  12  Ind.  R.  484  ; 
McClasky  v.  Grand  Rapids  &  Ind.  Railw.  Co.,  16  Ind.  R.  96.  Where  by  the 
charter  of  an  eleemosynary  corporation  subscriptions  were  allowed  to  be  taken, 
and  the  subscriber,  by  securing  the  amount  and  paying  the  interest  promptly, 
was  entitled  to  save  the  payment  of  the  principal,  it  was  held  this  was  matter  of 
indulgence  to  the  subscriber,  to  which  he  could  only  entitle  himself  by  proving 
his  compliance  with  the  conditions  upon  which  the  indulgence  was  granted. 
Denny  v.  North  W.  Christian  University,  16  Ind.  R.  220.  The  undertaking 
of  subscribers  to  a  joint-stock  will  be  held  several  and  not  joint,  without  express 
words.  Price  v.  Grand  Rapids  &  I.  R.  Co.,  18  Ind.  R.  137.  The  law  by  which 
a  corporation  exists  and  acts  forms  part  of  the  contract  of  subscription.  Hoag- 
land  v.  Cin.  &  F.  W.  R.  Co.,  18  Ind.  R.  452. 

2  Post,  §  50. 


§49.  MODE   OF   ENFORCING   PAYMENT.  16o 

subscription  for  shares  is  justly  regarded  as  equivalent  to  a  prom- 
ise to  pay  calls,  as  they  shall  be  legally  made,  to  the  amount  of 
the  shares.  This  may  now  be  regarded  as  settled,  both  in  this 
country  and  in  England,  and  that  the  power  given  the  company 
to  forfeit  and  sell  the  shares,  in  cases  where  the  shareholders  fail 
to  *  pay  calls,  is  not  an  exclusive  but  a  cumulative  remedy,  unless 
the  charter,  or  general  laws  of  the  state,  provide  that  no  other 
remedy  shall  be  resorted  to  by  the  company.3 

3  Hartford  &  New  Haven  Railway  Co.  v.  Kennedy,  12  Conn.  R.  499.  In  this 
case  it  was  held,  that,  from  the  relation  of  stockholder  and  company  thus  created, 
a  promise  was  implied  to  pay  instalments,  that  the  clause  authorizing  a  sale  of  the 
stock  was  merely  cumulative  ;  and  that,  whether  the  company  resorted  to  it  or 
not,  the  personal  remedy  against  the  stockholder  remained  the  same.  The  same 
points  are  confirmed  by  the  same  court,  in  Mann  v.  Cooke,  20  Conn.  R.  1 78.  And 
in  Danbury  Railw.  Co.  v.  Wilson,  22  Conn.  R.  435,  the  defendant  was  held  liable 
for  calls  upon  a  subscription  to  the  stock  of  a  company  whose  charter  had  expired, 
and  been  revived  by  the  active  agency  of  defendant.  See  also  Dayton  ». 
Borst,  31  N.  Y.  R.  435  ;  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  R.  491. 

All  the  cases,  with  slight  exceptions,  hold,  that  where  the  subscription  is  of 
such  a  character  as  to  give  a  personal  remedy  against  the  subscriber,  in  the 
absence  of  all  other  specific  redress,  the  mere  fact  that  the  company  have  the 
power  to  forfeit  the  shares  for  non-payment  of  calls,  will  not  defeat  the  rio-ht  to 
enforce  the  payment  of  calls  by  action.  Goshen  Turnpike  Co.  v.  Hurtin,  9 
Johns.  217  ;  Dutchess  Cotton  Manufacturing  Co.  v.  Davis,  14  Johns.  238;  Troy 
T.  Co.  v.  McChesney,  21  Wend.  296;  Northern  R.  v.  Miller,  10  Barb.  260; 
Plank  Road  Co.  v.  Payne,  17  Barb.  567.  In  this  last  case  it  was  held  to  be 
matter  of  intention  and  construction,  whether  the  remedies  were  concurrent 
and  cumulative,  or  in  the  alternative.  And  in  Troy  and  Boston  R.  v.  Tibbitts, 
18  Barb.  297,  it  is  said  to  be  well  settled,  that  the  obligation  of  actual  payment 
is  created,  by  a  subscription  to  a  capital  stock,  unless  plainly  excluded  by  the 
terms  of  the  subscription,  and  that  the  forfeiture  is  a  cumulative  remedy.  0»- 
densburg  R.  &  C.  Railway  v.  Frost,  21  Barb.  541.  See  also  Herkimer  M.  &  H. 
Co.  v.  Small,  21  Wend,  273  ;  s.  c.  2  Hill,  127 ;  Sagory  v.  Dubois,  3  Sand.  Ch.  466  ; 
Mann  v.  Currie,  2  Barb.  294;  Mann  v.  Pentz,  2  Sand.  Ch.  257 ;  Ward  v.  Griswold- 
ville  Manuf.  Co.,  16  Conn.  R.  593  ;  Lexington  &  West  Cambridge  R.  v.  Chandler, 
13  Met.  311 ;  Klein  v.  Alton  &  Sangamon  R.  13  Illinois,  R.  514  ;  Ryder  v.  Same, 
id.  516  ;  Gayle  v.  Cahawba  R.  8  Ala.  R.  586  ;  Beene  v.  Cahawba  &  M.  R.  3  id. 
660  ;  Spear  v.  Crawford,  14  Wend.  20 ;  Palmer  v.  Lawrence,  3  Sand.  Sup.  Ct.  R. 
161,  where  Duer,J.,  says  the  law  must  now  be  considered  as  settled,  "  that  the  ob- 
ligation of  actual  payment  is  created  in  all  cases,  by  a  subscription  to  a  capital 
stock,  unless  the  terms  of  subscription  are  such  as  plainly  to  exclude  it."  Elysville 
v.  O'Kisco,  5  Miller,  152  ;  Greenville  &  Columbia  R.  v.  Smith,  6  Rich.  91 ;  Char- 
lotte &  S.  C.  R.  R.  Co.  v.  Blakely,  3  Strob.  245  ;  Banet  v.  Alton  &  Sangamon  R, 
13  Illinois  R.  504, 514 ;  Hightower  v.  Thornton,  8  Georgia  R.  486 ;  Freeman  i\Win- 

*72 


164  ASSESSMENTS    OR    CALLS.  §49. 

*  3.  The  question  in  the  English  cases  seems  to  be,  whether, 
after  the  forfeiture  of  the  shares,  and  a  confirmation  of  the  same 

Chester,  10  Sm.  &  M.  577  ;  Tar  River  Nav.  Co.  v.  Neal,  3  Hawks,  520  ;  Gratz  v. 
Redd,  4  B.  Mon.  1 78  ;  Selma  R.  v.  Tipton,  5  Ala.  R.  787  ;  Troy  &  R.  R.  v.  Kerr, 
1 7  Barb.  581.  Where  the  statute  gives  an  election  to  the  company  either  to  for- 
feit the  shares  for  non-payment  of  calls,  or  to  sue  and  collect  the  amount  of  the 
shareholder,  it  was  held  that  no  notice  of  such  election  was  necessary  to  be  given 
before  suit  brought.  New  Albany  &  Salem  R.  v.  Pickens,  5  Ind.  R.  247.  The  terms 
of  the  charter  must  be  pursued  where  they  provide  specifically  for  the  redress  for 
non-payment  of  calls.  As  if  the  shareholder  is  made  liable  only  for  deficiency 
after  forfeiture  and  sale  of  the  stock.  Grays  v.  Turnpike  Co.,  4  Rand.  578  ;  Essex 
Bridge  Co.  v.  Tuttle,  2  Verm.  R.  393.  But  some  of  the  American  cases  seem  to 
hold,  that  a  corporation  has  no  power  to  enforce  the  payment  of  calls,  against  a 
subscriber  for  stock,  unless  upon  an  express  promise,  or  some  express  statutory 
power,  and  that  a  subscription  for  the  stock  is  not  ecmivalent  to  an  express 
promise  to  pay  calls  thereon  to  the  amount  of  the  shares.  Kennebec  &  Port- 
land R.  v.  Kendall,  31  Maine  R.  470.  But  this  class  of  cases  is  not  numerous,  and 
is,  we  think,  unsound.  See  also  Allen  v.  Montgomery  R.,  11  Ala.  R.  437.  It  has 
been  held,  that  after  the  forfeiture  is  declared,  the  company  cannot  longer  hold 
the  subscriber  liable.  Small  v.  Herkimer  M.  &  H.  Co.,  2  Comst.  330.  So  if  the 
company  omit  to  exercise  their  power  of  forfeiture,  as  the  successive  defaults 
occur,  until  all  the  calls  are  made,  it  thereby  loses  its  remedy  by  sale.  Stokes 
v.  The  Lebanon  &  Sparta  Turnpike  Co.,  6  Humph.  241.  See  also  Harlaem 
Canal  Co.  v.  Seixas,  2  Hall,  504  ;  Delaware  Canal  Co.  v.  Sansom,  1  Binney,  70. 
The  fact  that  the  commissioners  have  by  the  charter  an  opinion  to  reject  sub- 
scriptions for  stock,  does  not  make  them  less  binding,  unless  they  are  so  rejected. 
Connecticut  &  Passumpsic  R.  R.  v.  Bailey,  24  Verm.  R.  465.  An  agreement 
made  at  the  time  of  subscription  inconsistent  with  its  terms,  and  resting  in  oral 
evidence  merely,  cannot  be  received  to  defeat  the  subscription.  24  Verm.  R.  465, 
s.  c.  In  a  late  case  in  Kentucky  this  subject  is  very  elaborately  discussed  by 
the  counsel,  and,  as  it  seems  to  us,  very  wisely  and  very  justly  disposed  of  by 
the  court.  McMillan  v.  Maysville  &  Lexington  Railway  Co.,  15  B.  Monroe,  218. 
It  was  there  held,  that  subscriptions  to  the  stock  of  a  railway  company,  like  other 
contracts,  should  receive  such  construction  as  will  carry  into  effect  the  probable 
intention  of  the  parties.  That  the  stock  subscribed  was  to  be  the  means  by  which 
the  road  should  be  constructed,  and  hence,  that  a  subscription  for  stock,  on  con- 
dition that  the  road  should  be  so  "  located  and  constructed  as  to  make  the  town 
of  Carlisle  a  point,"  imposed  upon  the  subscribers  the  duty  to  pay,  upon  the  loca- 
tion of  the  road  in  that  place,  and  that  the  construction  of  the  road  was  not  a 
condition  precedent  to  the  right  to  recover  for  calls  on  the  stock.  See  also  New 
Hampshire  Central  R.  v.  Johnson,  10  Foster,  390  ;  South  Bay  Meadow  Dam 
Co.  v.  Gray,  30  Maine  R.  547  ;  Greenville  &  Columbia  R.  v.  Cathcart,  4  Rich.  89  ; 
Danbury  &  Xorwalk  R.  v.  "Wilson,  22  Conn.  R.  435.  An  agreement  to  take  and 
fill  shares  in  a  railway  company,  is  an  agreement  to  pay  the  assessments  legally 
made.  Bangor  Bridge  Co.  v.  McMahon,  10  Maine  R.  478  ;  Buckfield  Br.  R.  v. 
*73 


§  49.  MODE   OF  ENFORCING   PAYMENT.  165 

by  the  company,  and  the  issuing  of  new  stock  in  lieu  of  the  for- 
feited shares,  the  subscriber  is  still  liable  for  any  deficiency. 
The  cases  all  regard  him  as  liable,  under  the  English  statutes, 
to  a  personal  action,  until  the  confirmation  of  the  forfeiture  of 
his  stock.4 

*  4.  But  in  a  late  case,  in  the  House  of  Lords,5  it  seems  to  have 
been  settled,  upon  great  consideration,  that  where  the  charter  or 
general  statutes  give  the  right  to  forfeit  the  shares,  or  to  collect 
the  amount  of  the  shareholder,  and  the  forfeiture,  sale,  and  can- 
cellation of  the  shares,  does  not  produce  the  requisite  amount,  the 
company  may  issue  new  shares  for  the  deficiency,  and  at  the  same 
time  maintain  an  action  for  it,  against  the  former  owner. 

Irish,  39  id.  44  ;  P.  &  K.  R.  v.  Dunn,  id.  587  ;  Penobscot  P.  v.  Dummer,  40  Maine 
R.  172;  White  Mountains  Railw.  v.  Eastman,  34  N.  H.  R.  124.  So,  too,  an 
agreement  to  take  shares  before  the  act  of  incorporation  is  obtained,  creates  an 
implied  duty  to  pay  calls  duly  made  thereon.  Buffalo  &  N.  Y.  City  Railw.  v. 
Dudley,  4  Kernan,  336.  The  general  subject  is  discussed  somewhat  at  large 
in  this  case,  and  the  results  arrived  at  confirm  the  doctrines  laid  down  in  the 
text.     Rensselaer  &  W.  PI.  Rd.  Co.  v.  Barton,  16  N.  Y.  Court  of  Appeals,  457. 

The  same  rule  is  mentioned  in  Fry's  Exrs.  ?>.  Lex.  &  Big.  S.  Railw.,  2  Met. 
(Ky.)  314,  where  the  question  of  the  extent  of  implied  obligation  assumed  by 
subscription  to  the  capital  stock  of  a  corporation  is  very  fully  and  fairly  illus- 
trated. 

4  Great  Northern  R.  v.  Kennedy,  4  Exch.  417.  So  the  allottees  of  shares  in 
a  projected  railway  company  are  made  liable  for  a  proportionate  share  of  the 
expense.  Up  fill's  case,  1  Eng.  L.  &  Eq.  13  ;  The  Direct  Shrewsbury  &  Leices- 
ter Railway  Co.,  in  re,  7  id.  28  ;  London  &  B.  R.  v.  Fairclough,  2  M.  &  G.  674 ; 
Edinburgh  L.  &  N.  H.  R.  v.  Hebblewhite,  2  Railw.  C.  237  ;  Birmingham,  Bristol 
&  Th.  J.  R.  v.  Locke,  2  Railw.  C.  867;  Railway  Co.  v.  Graham,  1  Ad.  &  Ellis 
(n.  s.),  271 ;  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R,  36.  It  has  been  held, 
that  a  shareholder  cannot  absolve  himself  from  calls  by  paying  the  directors  a 
sum  of  money  for  his  discharge,  even  though  the  money  be  accepted,  and  the 
shares  transferred.    Bennett  ex  parte,  27  Eng.  L.  &  Eq.  5  72.    See  also  §  4,  ante. 

6  Inglis  v.  Great  Northern  R.,  16  Eng.  L.  &  Eq.  55.  See  also  Peoria  & 
Oquawka  R.  v.  Elting,  17  111.  R.  429  ;  Cross  v.  Mill  Co.,  17  111.  R.  54. 

But  where  the  deed  of* settlement  gave  the  right  to  forfeit  the  shares  at  once, 
or  to  enforce  the  payment,  if  they  should  think  fit,  it  was  held,  that  a  judgment 
for  the  amount  due  is  a  bar  to  any  subsequent  forfeiture.  Giles  v.  Hutt,  3  Exch. 
18.  And  where  the  charter  of  the  company  provided,  that  the  shares  of  a  de- 
linquent shareholder  "  shall  be  liable  to  forfeiture,  and  the  company  may  declare 
the  same  forfeited  and  vested  in  the  company,"  it  was  held  the  option,  in  de- 
claring such  forfeiture,  was  in  the  company,  and  not  in  the  shareholders.  Rail- 
way Company  v.  Rodrigues,  10  Rich.  (S.  C.)  278. 

*74 


1G6  ASSESSMENTS   OR   CALLS.  §  49. 

5.  It  seems  to  be  well  settled,  that  to  entitle  the  company  to 
sue  for  calls,  the  provisions  of  their  charter,  and  of  the  general 
laws  of  the  state,  must  be  strictly  pursued.  And  if  the  shares 
have  been  forfeited  and  sold  without  pursuing  all  the  require- 
ments, in  such  case  provided,  no  action  will  lie  to  recover  the 
balance  of  the  subscription.6  And  if  the  shares  be  sold  for  the 
non-payment  of  several  assessments,  one  of  which  is  illegal,  the 
corporation  cannot  recover  the  remainder  of  the  subscription.7 
But  where  the  by-laws  of  the  company  prescribe  a  specific  mode 
of  notice  to  the  delinquent,  of  the  time  and  place  of  sale,  through 
the  mail,  this  is  not  to  be  regarded  as  exclusive,  but  other  notice 
which  reaches  the  party  in  time  will  be  sufficient.8 

But  in  a  recent  case 9  the  law  in  regard  to  proceedings  in  forfeit- 
ure of  shares  is  held  very  strictly.  It  is  here  considered  that  no- 
tice must  be  given  in  the  precise  time  and  in  the  exact  form  re- 
quired by  statute,  and  that  the  sale  must  in  all  respects  correspond 
precisely  with  the  requirements  of  the  provisons  of  the  law.  The 
rule  is  carried  so  far  here  that  posting  notice  in  a  public  place 
was  held  no  sufficient  compliance  with  the  law  requiring  it  to  be 
in  a  "  conspicuous  "  place  ;  and  it  was  here  considered  that  sub- 
scriptions to  preferred  stock  could  not  be  reckoned  to  make  up 
the  requisite  amount  of  capital  to  enable  the  corporation  to  go 
into  operation. 

6.  But  notice  that  shares  in  a  railway  corporation  will  be  sold 

6  Portland,  Saco,  &  Portsmouth  Railw.  v.  Graham,  11  Met.  1. 

7  Stoneham  Branch  R.  Co.  v.  Gould,  2  Gray,  277. 

8  Lexington  &  West  Cambridge  Railw.  v.  Chandler,  13  Met,  311.  And  where 
the  charter  required  notice  of  the  instalment  three  weeks  prior  to  the  same  be- 
coming due,  it  was  held  prima  facie  evidence  of  compliance  by  producing  the 
publication,  and  oral  evidence  of*  its  being  repeated  the  requisite  number  of 
times,  without  producing  all  the  papers.  Unthank  v.  Henry  County  Turnp. 
Co.,  6  Porter  (Ind.),  125.  And  in  a  later  case,  Anderson  v.  The  Ohio  & 
Miss.  Railw.  Co.,  14  Ind.  R.  169,  where  the  charter  limited  the  amount  of  calls 
to  ten  per  cent  per  annum  upon  subscriptions  to  stock,  and  ten  per  cent  had 
been  paid,  a  call  was  held  sufficient  without  specifying  the  place  of  payment  or 
the  per  cent  to  be  paid,  only  five  remaining  within  the  power  of  the  directors  to 
call  for,  and  the  notice  fixing  the  time  and  place  of  payment. 

0  Lewey's  Island  Railw.  v.  Bolton,  48  Me.  R.  451.  The  rules  of  law  as  to 
what  is  requisite  to  constitute  a  valid  subscription  to  a  stock  in  a  railway  com- 
pany and  to  justify  calls,  are  much  considered  in  the  recent  case  of  Maltby  v. 
N.  W.  Va.  Railw.,  10  Md.  R.  422. 


§49.  MODE   OF   ENFORCING   PAYMENT.  167 

for  nonpayment  of  assessments  on  a  day  fixed,  and  by  an  auc- 
tioneer named,  who  is  and  has  long  been  an  auctioneer  in  the 
place  at  which  the  notice  bears  date  is  insufficient  if  it  do  not 
name  the  place  of  sale.10 

7.  The  validity  of  calls  cannot  be  called  in  question  upon 
the  ground  that  the  directors  making  the  same  are  acting  in 
the  interest  and  for  the  benefit  of  a  rival  company,  and  have 
in  consequence  unnecessarily  retarded  the  construction  of  the 
company's  works.11  But  the  directors  must  be  duly  appoint- 
ed.12 

8.  And  the  proceedings  in  making  the  calls  must  have  been 
substantially  in  conformity  with  the  charter  and  by-laws  of  the 
company  and  the  general  laws  of  the  state  at  the  time  of  making 
the  same.  Any  subsequent  ratification  by  the  directors  of  an  in- 
formal call  will  only  give  it  effect  from  the  date  of  the  ratifica- 
tion.13 

9.  A  subscriber  who  has  executed  the  deed  of  settlement,  pur- 
chased shares  and  received  dividends  upon  the  same,  is  not  at 
liberty  to  object  to  their  validity  upon  the  ground  that  the  com- 
pany were  by  the  deed  of  settlement  authorized  to  issue  shares 
for  £  100,  and  these  were  issued  as  half  shares  at  £  50  ;  this  ac- 
quiescence estops  him  from  doing  so.14 

10.  It  seems  that  unless  the  constitution  of  the  corporation  or 
the  general  laws  of  the  state  contain  a  provision  justifying  a 
forfeiture  of  shares,  it  is  not  competent  for  the  majority  of  the 
shareholders  by  prospective  resolution  to  establish  a  regulation 
whereby  the  shares  shall  be  forfeited  upon  failure  to  comply  with 
the  requirements  of  such  resolution.15 

11.  It  is  no  valid  reason  for  making  more  calls  than  are  justi- 
fied by  the  constitution  and  laws  affecting  the  question,  that 
some  of  the  calls  were  not  regularly  made  and  were  therefore 
void,  and  were  not  paid  by  the  defendant.    It  should  appear  that 

10  Lexington  &  West  Cambridge  Railway  v.  Staples,  5  Gray,  520. 

11  Orr  v.  Gl.  A.  &  M.  J.  Railw.,  6  Jur.  N.  S.  877. 

12  H.  B.  Coal  Co.  v.  Teague,  5H.&N.  151  ;  s.  c.  6  Jur.  N.  S.  275. 

13  Cornwall  G.  C.  M.  Co.  v.  Bennett,  5  H.  &  N.  423  ;  s.  c.  6  Jur.  N.  S.  539  ; 
Anglo  California  G.  M.  Co.  v.  Lewis,  6  Jur.  N.  S.  1376. 

14  Hull  Flax  &  Cotton  Co.  v.  Wellesley,  6  H.  &  N.  38. 

15  Barton's  case,  4  De  Gex  &  J.  46. 


168 


ASSESSMENTS   OR   CALLS. 


§50 


such  irregular  calls  had  been  declared  void,  otherwise  the  direc- 
tors may  have  secured  most  of  the  money  demanded  by  them.16 


♦SECTION    IV. 


Creditors  may  compel  Payment  of  Subscriptions. 


1.  Company  compelled  to  collect  of  subscribers 
by  mandamus. 

2-4.  Amount  due  from  subscribers,  a  trust- 
fund  for  the  benefit  of  creditors. 

5.  If  a  state  own  the  stock  it  will  be  the 

same. 

6,  7.  A  diversion  of  the  funds  from  creditors 

is  a  violation  of  contract  on  the  part  of 


the  company,  and  a  state  law  authorizing 
it  invalid. 
8,  9.   The  general  doctrine  above  stated  found 
in  many  American  cases. 

10.  Judgment  creditors   may   bring   bill    in 

equity. 

1 1 .  Promoters  of  railways  liable,  as  partners, 

for  expenses  of  procuring  charter. 


§50.  1.  By  the  present  English  statute,  the  creditors  of  a 
company  may  recover  their  judgment  debts,  against  shareholders, 
who  have  not  paid  the  full  amount  of  their  shares  to  the  extent 
of  the  deficiency.1  Before  this  statute,  it  was  considered  that  a 
writ  of  mandamus  would  lie,  to  compel  the  company  to  make 
and  enforce  calls  against  delinquents.2 

2.  In  this  country  this  question  has  arisen,  not  unfrequently, 
in  the  case  of  insolvent  companies,  no  such  provision  existing 
in  most  of  the  states  as  that  of  the  English  statute  just  referred 
to. 

3.  This  subject  is  very  extensively  examined,  and  considered, 
by  the  national  tribunal  of  last  resort,  in  a  case  of  much  impor- 
tance and  delicacy,3  and  the  following  results  arrived  at :  — 

4.  On  the  dissolution  of  a  corporation,  its  effects  are  a  trust- 
fund,  for  the  payment  of  its  creditors,  who  may  follow  them, 

16  Welland  Kailw.  v.  Berrie,  6  H.  &  N.  416. 

1  8  cSc  9  Vict.  c.  16,  §§  36,  37. 

2  Walford,  277;  Hodges,  106,  n.  («)  ;  Reg.  v.  Victoria  Park  Co.,  1  Q.  B. 
288,  where  the  opinion  of  the  court  very  clearly  intimates,  that  the  writ  of  man- 
damus will  lie,  to  compel  the  company  to  enforce  the  payment  of  calls,  where  it 
appears  that  judgments  against  the  company  remain  unsatisfied  for  want  of  as- 
sets. But,  under  the  circumstances  of  this  case,  it  was  not  deemed  requisite  to 
issue  the  writ. 

3  Curran  v.  State  of  Arkansas,  15  How.  304. 

*75 


§  50.       CREDITORS   MAY   COMPEL   PAYMENT   OF   SUBSCRIPTIONS.        169 

into  the  hands  of  any  one,  not  a  bond  fide  creditor,  or  purchaser 
without  notice  ;  and  a  state  law,  which  deprives  creditors  of  this 
right,  and  appropriates  the  property  to  other  uses,  impairs  the 
obligation  of  their  contracts,  and  is  invalid. 

5.  The  fact,  that  a  state  is  the  sole  owner  of  the  stock  in  a 
banking  corporation,  does  not  affect  the  rights  of  the  creditors. 

6.  The  capital  stock  of  a  company  is  a  fund  set  apart  by  its 
charter  for  the  payment  of  its  debts,  which  amounts  to  a  con- 
tract, *  with  those  who  shall  become  its  creditors,  that  the  fund 
shall  not  be  withdrawn  and  appropriated  to  the  use  of  the  owner, 
or  owners,  of  the  capital  stock. 

7.  A  law,  which  deprives  creditors  of  a  corporation  of  all  legal 
remedy  against  its  property,  impairs  the  obligation  of  its  con- 
tracts, and  is  invalid. 

8.  These  propositions,  with  the  exception  of  the  constitutional 
question,  in  regard  to  the  impairing  of  an  assumed  or  implied 
contract  with  the  creditors  of  the  corporation,  are  all  fully  sus- 
tained by  numerous  decisions  of  the  highest  authority  in  this 
country. 

9.  Thus  in  a  case  before  Mr.  Justice  Story,  in  the  Circuit 
Court,4  it  was  held,  that  the  capital  stock  of  a  corporation  is  a 
trust-fund,  for  the  payment  of  its  debts,  and  being  so,  it  may, 
upon  general  principles  -of  equity  law,  be  followed  into  other 
hands,  so  long  as  it  can  be  traced,  unless  the  holder  show  a  par- 
amount title.5  And  in  cases  where  the  capital  stock  or  assets 
of  a  corporation  have  been  distributed  to  the  stockholders  with- 
out providing  for  the  payment  of  its  debts,  a  court  of  equity  will 
allow  the  creditors  to  sustain  a  bill  against  the  shareholders,  to 
compel  contribution  to  the  payment  of  the  debts  of  the  company, 
to  the  extent  of  funds  obtained  by  them,  whether  directly  from 
the  company,  or  through  some  substitution  of  useless  securities 
for  those  which  were  good.6 

4  "Wood  v.  Dummer,  3  Mason,  308. 

5  Adair  v.  Shaw,  1  Sch.  &  L.  243,  261.     See  Dayton  v.  Borst,  31  N.  Y.  R.  435. 

6  Nathan  v.  Whitlock,  9  Paige,  152 ;  s.  c.  3d  Edwards's  Ch.  215.  But  it  has 
been  held,  that  the  distribution  of  the  capital  stock  among  the  shareholders,  be- 
fore the  debts  of  the  company  are  paid,  and  leaving  no  funds  for  that  purpose, 
will  not  render  the  shareholders  liable  to  an  action  of  tort,  at  the  suit  of  the 
creditors  of  the  company,  there  being  no  such  privity  as  will  lay  the  foundation 

*76 


170  ASSESSMENTS   OR   CALLS.  §  50. 

*  10.  Where  a  corporation  have  abandoned  all  proceedings 
under  their  charter,  from  insolvency,  and  still  owe  debts,  the  sub- 
scriptions to  the  capital  stock  not  being  all  paid,  a  judgment 
creditor  may  proceed,  in  equity,  against  the  delinquent  share- 
owners,  there  being  no  longer  any  mode  by  which  calls  upon  the 
stock  may  be  enforced,  under  the  provisions  of  the  charter,  or  by 
action  at  law,  in  favor  of  the  company.7 

11.  It  is  held  by  the  English  statutes,  in  regard  to  fully 
registered  companies,  which  never  go  into  full  operation,  but 
have  to  be  closed  under  the  winding-up  acts,  that  a  shareholder, 
who  has  paid  up  the  full  amount  of  his  shares,  is  still  liable  to 
pay  the  necessary  calls,  to  defray  the  expenses  of  winding  up  the 
company,  the  subscribers  to  such  joint-stock  companies,  under  the 
statute,  being  held  liable  to  the  same  extent  as  partners.8 

of  an  action  at  law,  even  in  states  where  no  court  of  chancery  existed.  Yose  v. 
Grant,  15  Mass.  R.  505.  In  equity  the  suit  may  be  in  the  name  of  the  receiver, 
Nathan  v.  Whitlock,  9  Paige,  152,  or  in  the  name  of  a  creditor,  suing  on  behalf 
of  himself  and  others,  standing  in  the  same  relation.  Mann  v.  Pentz,  3  Comst. 
415, 422.  And  all  the  shareholders,  who  have  not  paid  their  subscriptions,  should 
be  made  parties  to  the  bill,  and  compelled  to  contribute  proportionally.     lb. 

The  same  principle  is  recognized  in  numerous  other  cases.  Muinma  v.  The 
Potomac  Co.,  8  Pet.  281 ;  Wright  v.  Petrie,  1  Sm.  &  M.  Ch.  282,  319  ;  Nevitt  v. 
Bank  of  Port  Gibson,  6  Sm.  &  M.  513;  Hightower  v.  Thornton,  8  Georgia  R. 
486;  Fort  Edward,  &c.  Plank  Road  Co.,  v.  Payne,  17  Barb.  567;  Gillet  v. 
Moody,  3  Comst.  479.  This  case  is  where  the  bank,  of  which  the  plaintiff  was 
receiver,  had  transferred  specie  funds  to  defendant,  in  exchange  for  his  own 
stock  in  the  bank.  The  transaction  was  held  illegal,  and  the  defendant  was 
compelled  to  refund,  for  the  benefit  of  the  creditors  of  the  bank.  And  where 
the  subsci'iber  to  a  bank,  which  became  insolvent,  assigned  all  his  interest  in  the 
bank,  it  was  held  not  to  exonerate  him  from  liability  to  assessments  upon  his 
subscription,  to  pay  debts  due  from  the  bank,  although  contracted  subsequent  to 
the  assignment.     Dayton  v.  Borst,  7  Bosw.  115. 

See  also  Morgan  v.  New  York  &  Albany  R.  10  Paige,  290. 

7  Henry  v.  The  Yermilion  &  Ashland  Railw.,  17  Ohio  R.  187.  See  also  Miers 
v.  Z.  &  M.  T.  Co.,  11  Ohio  R.  273 ;  s.  C.  13  Ohio  R.  197.  And  where  the  com- 
pany retains  its  organization,  and  officers,  it  may  be  compelled,  by  writ  of  man- 
damus, to  enforce  calls  against  the  shareholders,  to  the  extent  of  their  liability, 
as  well  as  to  perform  other  duties.  Commonwealth  v.  Mayor  of  Lancaster,  5 
Watts,  152. 

8  Matter  of  the  Sea,  Fire,  and  Life  Assurance  Society,  23  Eng.  L.  &  Eq.  422. 
The  form  of  proceeding  and  the  extent  of  responsibility  is  extensively  consid- 
ered, as  to  delinquent  subscribers  to  an  insolvent  corporation,  in  Adler  v. 
Milw.  Patent  Brick  Co.,  13  Wise.  R.  57. 

*  77 


§51. 


CONDITIONS   PRECEDENT   TO   MAKING   CALLS. 


171 


SECTION    V. 


Conditions  precedent  to  making-  Calls. 


1.  Conditions  precedent  must   be  performed 

before  calls. 

2.  But  collateral,  or  subsequent  conditions  not. 

3.  Definite  capital  must  all  be  subscribed  be- 

fore calls. 

4.  It  is  the  same  where  defined  by  the  com- 

pany, as  in  the  charter. 

5.  Conditional  subscriptions  not  to  be  reck- 

oned. 


6.  Legislature  cannot  repeal  conditions  prece- 

dent. 

7.  Limit  of  assessments  cannot  be  exceeded 

for  any  purpose. 

8.  Where  charter  fails  tolimit  stock,  corpora- 

tion miry. 

9.  Alteration  in  charter  reducing  amount  of 

stock. 


§  51.  1.  Conditions  precedent  must  be  complied  with,  before 
any  binding  calls  can  be  made.  Anything,  which,  by  the  ex- 
press provisions  of  the  charter,  or  the  general  laws  of  the  state, 
is  made  a  condition  to  be  performed  on  the  part  of  the  company, 
or  its  agents,  before  and  as  the  foundation  of  the  right  to  make 
calls,  upon  the  subscriptions  to  the  stock  ;  or  where  the  thing  is 
required  to  be  done,  before  calls  shall  be  made,  and  is  an  impor- 
tant element  in  the  consideration  of  the  agreement  to  take  stock 
in  the  *  company,  it  should  ordinarily  be  regarded  as  a  condition 
precedent. 

2.  But  where  the  matter  to  be  done  is  rather  incidental  to  the 
main  design,  and  only  affects  the  enterprise  collaterally,  it  will 
commonly  be  regarded  as  merely  directory  to  the  company,  or  at 
most  as  a  concurrent  or  subsequent  condition,  to  be  enforced  by 
independent  proceedings,  and  in  the  performance  of  which  time 
is  not  indispensable.1 

1  Carlisle  v.  Cahawba  &  Marion  Railway  Co.,  4  Ala.  R.  70;  Ante,  §  18;  Ba- 
net  v.  Alton  &  Sangamon  Railway  Co.,  13  111.  R.  504;  Utica  &  Schenectady 
Railway  Co.  v.  Brinkerhoff,  21  Wend.  139.  This  last  case  is  an  action  upon  a 
special  undertaking  to  pay  land  damages,  on  condition  the  company  would  lo- 
cate their  road  so  as  to  terminate  at  a  particular  place,  which  the  company 
alleged  they  had  done,  and  defendant  was  held  not  liable,  for  want  of  mutual- 
ity, the  company  not  being  bound  by  the  contract.  Cooke  v.  Oxley,  3  T.  R. 
G53.  But  it  admits  of  some  question,  we  think,  whether  the  case  of  21  Wend. 
139,  comes  fairly  within  the  principle  upon  which  it  was  decided.  The  case  of 
Cooke  v.  Oxley,  which  has  been  sometimes  questioned,  is  an  obvious  case  of 
want  of  consideration  on  the  part  of  defendant,  it  being  a  mere  naked  refusal 

*78 


172  ASSESSMENTS   OR   CALLS.  §  51. 

And  where  the  company  voted  to  issue  six  hundred  additional 
shares  and  to  allow  each  stockholder  to  take  one  new  share  for 

of  goods,  for  a  fixed  time,  the  plaintiff  in  the  mean  time  having  an  election,  to 
take  them  or  not.  This  class  of  cases  is  numerous  and  sound,  resting  upon  the 
mere  want  of  consideration.  Burnet  v.  M.  Bisco,  4  Johns.  235.  But  where 
such  an  option  is  given  upon  consideration,  or  as  a  standing  offer,  and  in  the 
mean  time  the  other  party  proceeds  to  perform  the  contract  on  his  part,  it  is  as 
binding  in  this  form  as  in  any  other.  And  it  was  so  held,  in  the  case  of  the 
Cumberland  Valley  Railway  Co.  v.  Baab,  9  Watts,  458.  In  this  case  the  inhab- 
itants of  one  portion  of  Harrisburg  made  a  subscription  to  induce  the  company 
to  cross  the  river  at  a  particular  point,  and  to  build  their  depot  upon  a  particu- 
lar street,  which  being  done,  the  subscribers  were  held  liable  to  pay  their  sub- 
scriptions to  the  company,  and,  as  we  think,  upon  the  most  obvious  and  satisfac- 
tory grounds. 

In  Henderson  &  Nashville  Railway  Co.  v.  Leavell,  16  B.  Monr.  358,  it  was 
held,  that  a  subscription  to  the  stock  of  a  railway,  conditioned  that  the  road 
should  pass  through  a  certain  town,  and  the  money  subscribed  should  be  ex- 
pended in  a  certain  county,  was  a  valid  subscription.  The  Court,  Stimpson,  J., 
say :  "  The  stock  in  this  case  is  not  conditional,  although  the  defendant  has,  in 
the  act  of  subscribing  for  it,  brought  the  company  under  certain  obligations  to 
him,  in  relation  to  it,  with  which  they  are  bound  to  comply.  Such  stipulations 
are  not  incompatible  with  sound  policy,  or  with  any  of  the  provisions  of  the 
charter.  They  do  not  render  the  subscription  void,  but  operate,  as  it  was  in- 
tended they  should,  for  the  benefit  of  the  stockholder.  But  even  if  the  sub- 
scription had  been  made,  upon  the  express  condition  that  the  money  should  not 
be  paid  until  certain  acts  were  done  by  the  company,  when  these  acts  were 
done,  the  stock  would  then  be  unconditional,  and  the  subscribers  would  then  be 
compelled  to  pay  it,  as  was  held  in  McMillan  v.  Maysville  &  Lexington  Railway 
Co.,  15  B.  Monr.  218."  If  a  subscrijjtion  for  stock  be  conditioned,  that  the  sub- 
scriber may  withdraw  his  subscription,  at  his  election,  if  the  whole  stock  is  not 
taken,  at  a  given  time,  and  the  defendant  pay  part  of  his  subscription  after  that 
date,  he  is  liable  for  the  balance,  unless  he  show  the  failure  of  the  condition,  and 
his  own  election,  in  a  reasonable  time  after,  to  withdraw.  Wilmington  &  Ra- 
leigh Railway  Co.  v.  Robeson,  5  Iredell,  391.  On  a  subscription  to  stock  in  a 
railway  upon  condition  the  road  should  "  pass  "  on  a  certain  route  through  a  cer- 
tain county,  it  is  not  a  condition  precedent  to  the  right  to  demand  payment,  that 
the  road  should  be  actually  constructed  upon  that  line ;  it  is  sufficient  if  the 
road  be  permanently  located  there.  North  Missouri  R.  Co.  v.  Winkler,  29 
Mo.  R.  318;  A.  &  N.  L.  Railw.  Co.  v.  Smith,  15  Ohio  St.  328.  See  also 
Vicksburg,  Shreveport,  and  Texas  Railw.  v.  McKean,  12  La.  Ann.  638. 
There  is  a  recent  case  in  Vermont.  Conn.  &  Pass.  Railw.  Co.  v.  Baxter,  32 
Vt.  R.  805,  where  the  court  seem  to  hold,  that  where  the  subscription  defined 
the  route  of  the  proposed  railway,  that  the  representations  of  the  agent  who 
carried  about" the  paper,  that  the  written  words  really  defined  one  particular 
route,  and  not  another,  the  subscribers  themselves  being  equally  connusant  of 


§51.  CONDITIONS   PRECEDENT   TO   MAKING   CALLS.  173 

every  two  held  by  lrim,  if  lie  subscribed  for  the  same,  paid  a  cer- 
tain sum  and  gave  his  note  for  the  balance,  before  a  day  named  ; 

the  facts  with  the  agent,  was  binding  upon  the  company,  and  would  preclude 
them  from  recovering  calls  upon  such  subscription,  provided  the  road  were  not  in 
fact  located  upon  the  particular  route  indicated  by  the  agent,  although  in  fact 
so  located  as  to  comply  with  the  conditions  of  the  written  subscription,  and 
although  the  agent  in  expressing  the  opinion  he  did,  acted  in  perfect  good  faith. 
The  case  is  not  one  of  sufficient  importance  to  require  much  discussion,  but  it 
may  be  well  to  bear  in  mind,  what  seems  to  have  escaped  the  apprehension  of 
the  court  for  the  moment,  that  the  point  ruled  as  stated  in  the  marginal  note 
and  in  the  opinion  of  the  court,  seems  to  be  adopting  the  oral  representations  of 
the  agent,  made  at  the  time  of  the  subscription,  as  part  of  the  written  contract 
of  subscription.  The  charge  of  the  court  below  puts  the  case  upon  the  ground, 
that  the  subscriber  is  bound  by  the  legal  construction  of  his  written  subscription, 
and  that  he  cannot  escape  such  responsibility  by  showing  that  those  who  acted 
on  behalf  of  the  company  maintained  a  different  opinion,  unless  that  was  done 
fraudulently,  with  a  view  to  deceive  the  defendant.  We  understood  that  to  be 
the  law  at  the  time,  and  we  cannot  fairly  say  that  we  understand  it  differently 
now. 

In  Chamberlain  v.  Painesville  &  Hudson  R.  Co.,  15  Ohio  N.  S.  225,  it  was 
decided  that  where  a  subscription  was  made  for  a  given  number  of  shares  of 
stock  in  a  railway  company,  payable  at  such  times,  and  in  such  instalments,  a3 
the  directors  may  prescribe,  provided  the  road  is  "  permanently  located "  on  a 
given  route,  and  that  a  "  freight  house  and  depot  be  built"  at  a  point  named  :  — 

1.  That  on  the  permanent  location  of  the  road  in  accordance  with  the  terms 
proposed,  the  subscription  became  absolute.  2.  That  the  provision  in  relation 
to  the  erection  of  the  buildings  must  be  regarded  as  a  stipulation  merely,  and 
its  performance  could  not  be  reasonably  considered  a  condition  precedent  to  the 
right  to  collect  the  amount  of  the  subscription.  3.  The  giving  by  a  subscriber, 
of  his  note  for  the  balance  of  his  subscription,  and  taking,  therefor,  from  the 
company,  a  receipt,  stipulating,  that  when  paid,  the  amount  of  the  note  should 
be  applied  on  his  stock,  was  prima  facie  a  waiver  of  conditions  precedent.  But 
this  is  denied  in  a  recent  case,  Pai-ker  v.  Thomas,  19  Ind.  R.  213. 

And  in  McAllister  v.  The  Ind.  &  Cin.  Railw.  Co.,  15  Ind.  R.  11,  a  question 
similar  to  the  one  stated  in  Conn.  &  Pass.  Railw.  Co.  v.  Baxter,  supra,  arose 
and  received  a  far  more  just  and  reasonable  determination.  The  plaintiff  made 
an  unconditional  subscription  to  the  stock  of  the  plaintiff's  company,  and  paid 
the  amount  and  took  and  retained  his  certificate  without  offering  to  surrender 
the  same.  But  at  the  time  of  the  subscription  the  company  promised  that  a 
branch  of  their  line  should  come  to  Milford,  the  place  of  the  plaintiff's  resi- 
dence, which  had  not  been  done.  The  suit  was  brought  to  recover  the  money 
paid.  Held,  that  the  parol  promise  to  construct  the  branch  to  Milford,  could 
not  be  proven  as  part  of  the  written  contract  of  subscription ;  and  hence  the 
money  paid  could  not  be  recovered  on  the  ground  of  a  breach  of  contract. 

2.  A  recovery  could  not  be  had  on  the  ground  of  fraud :  the  parol  promise  and 


174  ASSESSMENTS    OR    CALLS.  §  51. 

it  was  held  there  was  no  implied  condition  that  the  whole  six 
hundred  shares  should  be  issued,  and  the  failure  to  do  so  was 

representation  being,  under  the  circumstances,  no  more  than  the  expression  of 
an  existing  intention  to  make  the  branch.  3.  Under  the  circumstances  the 
company  was  not  liable  to  repay  the  money. 

See  also  Andrews  v.  Ohio  &  Miss.  Railw.  Co.,  14  Ind.  R.  169;  Eakright  v. 
L.  &  N.  Ind.  Railw.,  13  Ind.  R.  404,  where  the  question  of  controlling  written 
subscriptions  by  oral  declarations  of  those  who  solicit  them,  as  to  the  probable 
route  of  the  road,  is  further  discussed  and  placed  upon  the  true  ground,  that  such 
representations  can  have  no  effect,  unless  upon  the  ground  of  fraud.  See  also 
Parker  v.  Thomas,  19  Ind.  R.  213  ;  Cunningham  v.  E.  &  K.  Railw.  Co.,  2  Head, 
23;  Brownlee  v.  O.,  Ind.  &  111.  Railw.  18  Ind.  R.  68. 

There  are  some  cases  which  go  the  length  of  saying  that  as  the  directors  of  a 
railway  company  have  no  power  to  give  any  binding  assurance  as  to  the  route 
which  shall  be  finally  adopted,  it  being  their  duty  to  place  it  where,  in  their 
ultimate  judgment,  the  public  good  requires,  it  is  the  folly  of  any  subscriber  to 
rely  upon  any  such  representation,  and  that  even  where  it  could  be  shown  that 
such  representations  were  fraudulently  made,  to  induce  subscriptions,  and  had 
the  purposed  effect,  the  subscriptions  could  not  be  avoided  on  that  ground. 
Ellison  v.  Mobile  &  Ohio  Railw.,  36  Miss.  R.  572;  Walker  v.  Same,  34  Id.  245. 

See  also  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  R.  491.  The  verbal  prom- 
ise of  the  agent  who  takes  up  subscriptions  for  a  railway,  that  the  time  of  pay- 
ment shall  be  delayed  beyond  the  time  named  in  the  charter,  and  which  in- 
duces the  subscriptions,  is  not  binding  upon  the  company.  Thigpen  v.  Miss. 
Central  Railw.,  32  Miss.  R.  347. 

One  subscribed,  in  1853,  for  twenty  shares  of  the  stock  of  the  P.  &  C.  R.  R.  Co., 
on  the  express  condition  that  the  company  "  should  locate  and  construct  their 
railway  along  the  route  contemplated  by  the  Meyer's  Mill  Plank  Road  Co.,  for 
their  road,"  paid  one  instalment,  part  of  the  second,  but  delayed  the  payment 
of  the  balance,  as  the  calls  were  made,  until  the  company,  before  the  road  was 
constructed  along  the  route  mentioned,  suspended  operations,  after  which  pay- 
ment was  refused  on  the  ground  that,  though  the  road  had  been  located  by  the 
company,  they  had  not  constructed  it,  according  to  the  condition  in  the  subscrip- 
tion. In  an  action  brought  by  the  company,  it  was  Held,  1.  That  the  promise 
of  subscription  being  precedent  to  that  of  construction,  upon  the  part  of  the 
company,  the  defendant  could  not  insist  upon  performance  by  the  railroad  com- 
pany, while  he  refused  performance  on  his  part,  and  that  the  road  having  been 
located  as  stipulated,  and  completed  so  far  as  the  means  of  the  company  would 
allow,  it  was  a  compliance  with  the  condition,  and  the  company  were  entitled  to 
recover.  2.  That  the  condition  in  the  contract  of  subscription  was  not  a  condi- 
tion precedent,  and  did  not  require  the  completion  of  the  road  before  payment 
could  be  required,  but  only  that  when  located  and  constructed  it  should  occupy 
the  route  designated,  the  undertaking  being  on  the  part  of  the  subscriber,  to 
pay,  as  calls  should  be  made  by  the  directors,  and  on  the  part  of  the  company 
to  locate   as  stipulated,  and  construct  as  fast  as  their  means  would  allow. 


§  51.       CONDITIONS  PRECEDENT  TO  MAKING  CALLS.        175 

no  ground  for  allowing  an  action  to  be  maintained  for  the  money- 
paid,  or  any  defence  to  the  notes  given  for  the  balance.2 

*  3.  It  is  an  essential  condition  to  making  calls,  in  those  com- 
panies where  the  number  of  shares  and  the  amount  of  capital  is 
fixed,  that  the  whole  stock  shall  be  subscribed  before  any  calls 
can  lawfully  be  made.3  And  if  calls  are  made  before  the  requi- 
site stock  is  subscribed,  although  the  subscription  is  completed 

3.  That  the  suspension  of  operations  made  by  the  directors  long  after  the  pay- 
ments upon  defendants  stock  had  been  due,  was  not  a  defence  in  an  action 
brought  against  him  for  the  unpaid  balance  thereon.  Miller  v.  Pittsburg  & 
Connellsville  Kailw.,  40  Penn.  St.  237. 

It  was  held  in  one  case  that  where  the  charter  required  subscriptions  by  re- 
sponsible persons  of  a  certain  proportion  of  the  estimated  cost  of  the  work  be- 
fore entering  upon  the  construction,  that  it  was  not  necessary  for  the  company 
to  show  compliance  with  this  requirement  in  order  to  enforce  calls.  Nor  does  the 
right  to  make  calls  depend  upon  the  extent  or  nature  of  the  indebtedness  of  the 
company ;  nor  can  a  subscriber  defend  against  calls  by  showing  that  a  portion 
of  the  requisite  amount  of  subscriptions  to  bind  the  defendant  were  made  by 
persons  of  no  actual  or  reputed  pecuniary  responsibility,  unless  he  also  show 
that  they  were  not  made  or  taken  in  good  faith.  Penobscot  Railw.  v.  White, 
41  Me.  512.  And  the  bad  faith  cannot  be  shown  by  the  declarations  of 
the  subscribers,  made  long  after  making  such  subscriptions.  lb.  And  where 
the  charter  of  a  corporation  requires  that  one  thousand  shares  shall  be  sub- 
scribed before  the  organization  of  the  company,  the  decision  of  the  majority  of 
the  subscribers  that  this  condition  has  been  complied  with,  and  the  actual  organ- 
ization of  the  company  in  pursuance  of  the  decision  is  binding  upon  the  minor- 
ity, lb.  This  will  not  preclude  the  minority  from  defending  on  the  ground 
that  the  proceedings  of  the  majority  were  in  bad  faith. 

a  Nutter  v.  Lexington  &  West  Cambridge  Railw.,  6  Gray,  85. 
8  Stoneham  Branch  Railway  Co.  v.  Gould,  2  Gray,  277;  Salem  Mill-Dam 
Co.  v.  Ropes,  6  Pick.  23 ;  s.  c.  9  Pick.  187 ;  Cabot  &  West  Springfield  Bridge 
Co.  v.  Chapin,  6  Cush.  50 ;  Worcester  &  Nashua  Railway  Co.  v.  Hinds,  8  Cush. 
110;  Lexington  &  West  Cambridge  Railway  Co.  v.  Chandler,  13  Met.  311 ;  N. 
Hampshire  Central  Railway  Co.  v.  Johnson,  10  Foster,  390. 

But  a  subscriber  for  shares  in  a  railway  company  is  liable  for  calls,  although 
by  a  subsequent  amendment  of  the  charter  of  the  company  the  capital  stock  is 
limited  to  four  thousand  shares,  and  that  number  has  not  been  subscribed,  there 
being  no  such  condition,  either  in  the  charter  of  the  company,  or  the  terms  of 
subscription,  at  the  time  of  subscribing.  York  &  Cumberland  Railway  v.  Pratt, 
40  Maine  R.  447.  But  the  number  of  shares  required  by  the  charter  must  be 
subscribed,  as  stated  in  the  text.  Penobscot  Railway  v.  Duinmer,  40  Maine  R. 
172.  But  the  records  of  the  company  are  evidence  of  such  fact.  lb.  Same  v. 
White,  20  Law  Rep.  689 ;  s.  c.  41  Maine  R.  512 ;  Peake  v.  Wabash  Railw.,  18 
Dlinois  R.  88. 

*79 


176  ASSESSMENTS    OR    CALLS.  §  51. 

before  action  brought,  no  recovery  can  be  had.4  But  it  has  been 
held,  that  the  general  provision  in  the  charter  of  a  railway  act, 
that  so  soon  as  1,500,000/.  shall  have  been  subscribed,  it  shall  be 
lawful  for  the  company  to  put  in  force  all  the  powers  of  the  act, 
authorizing  the  construction  of  the  railway,  and  of  the  acts  there- 
in recited,  being  the  general  railway  acts,  did  not  require  such 
subscription  to  be  made  before  making  calls,  but  only  before  ex- 
ercising compulsory  powers  of  taking  land.5 

4.  And  where  the  charter  provides  that  the  members  might 
divide  the  capital  stock  into  as  many  shares  as  they  might  think 
proper,  and  by  a  written  agreement  the  subscribers  fixed  the 
capital  stock  at  $50,000,  divided  into  500  shares  of  f  100  each, 
and  only  one  hundred  and  thirty-eight  shares  had  been  sub- 
scribed, it  was  held  no  assessment  for  the  general  purposes  of  the 
corporation  could  be  made.6 

*  5.  And  where  the  charter  of  a  railway  company  requires 
their  stock  to  consist  of  not  less  than  a  given  number  of  shares, 
assessments  cannot  be  made  before  the  required  number  is  taken. 
And  in  such  case  conditional  subscriptions  are  not  to  be  reck- 
oned, even  where  the  condition  is  acceded  to  by  the  company,  if 
the  subscriber  still  repudiates  the  subscription,  on  the  ground 
that  the  condition  is  not  fully  performed  by  the  contract  drawn 
up  in  form.     And  the  plea  of  the  general  issue,  is  no  such  ad- 

4  Norwich  &  Lowestoft  Navigation  Co.  v.  Theobold,  1  Moody  &  M.  151; 
Stratford  &  M.  Railway  Co.  v.  Stratton,  2  B.  &  Ad.  518.  And  see  Atlantic 
Cotton  Mills  v.  Abbott,  9  Cush.  423,  where  a  condition  in  a  subscription  for 
stock,  that  the  capital  stock  of  the  company  should  not  be  less  than  $1,500,000, 
was  held  a  condition  precedent  to  making  calls. 

5  Waterford,  Wexford,  &  W.  Railway  Co.  v.  Dalbiac,  6  Railw.  C.  753 ;  8.  c. 
4  Eng.  L.  &  Eq.  455.  But  the  American  cases  will  not  justify  such  a  con- 
struction. It  would  here  be  held  a  condition  precedent  to  tlje  right  to  make 
calls,  or  even  to  maintain  a  corporate  existence,  probably. 

6  Littleton  Manufacturing  Co.  v.  Parker,  14  N.  Hamp.  R.  543 ;  Contoocook 
Valley  Railway  Co.  v.  Barker,  32  N.  Hamp.  R.  (1  Fogg,  R.)  363. 

Where  the  condition  of  a  bond  given  for  the  amount  of  a  railway  subscription 
was,  tbat  the  same  should  be  paid  when  the  road  was  "  completed  "  to  a  certain 
village,  it  was  held  that  the  condition  was  performed  when  the  road  was  made 
to  the  suburbs  of  the  village,  in  such  a  manner,  as  to  allow  daily  trains  on  it, 
carrying  all  the  freight  and  passengers  that  offer,  although  some  portion  of  the 
work  was  only  temporary.  O'Neal  v.  King,  3  Jones,  517;  Chapman  v.  Mad 
River  &  Lake  Erie  Railway  Co.,  6  Ohio  St.  119. 
*80 


§  51.       CONDITIONS  PRECEDENT  TO  MAKING  CALLS.        177 

mission  of  the  existence  of  the  company,  as  to  preclude  subscrib- 
ers from  contesting  the  amount  of  subscriptions,  to  enable  the 
company  to  make  calls.7 

6.  And  where  the  charter  originally  required  11,000  shares  to 
be  the  minimum,  and  when  less  than  10,000  were  subscribed, 
the  company  was  organized,  and  the  subscriptions  accepted,  and 
assessments*  made,  and  afterwards,  by  an  act  of  the  legislature, 
accepted  by  the  corporation,  the  minimum  was  reduced  to  8,000 
shares,  in  an  action  to  recover  assessments,  made  on  defendant's 
shares,  before  and  after  such  alteration  of  the  charter,  it  was 
held  : 

1.  That  the  minimum  was  a  condition  precedent,  to  be  ful- 
filled by  the  corporation,  before  the  subscribers  were  liable  to 
assessments. 

2.  That  the  alteration  of  the  charter  will  not  affect  prior  sub- 
scribers. 

3.  Nor  will  the  defendant  be  estopped  from  relying  upon  this 

7  Oldtown  &  Lincoln  Railw.  Co.  v.  Veazie,  39  Maine  R.  571.  Any  condi- 
tion the  subscriber  sees  fit  to  annex  to  his  subscription  must  be  complied  with 
before  the  subscriber  is  liable  to  assessments.  Penobscot  &  Kennebec  Railw. 
Co.  v.  Dunn,  39  Maine  R.  587. 

A  condition,  that  not  more  than  five  dollars  on  a  share  shall  be  assessed  at 
one  time,  is  not  violated  by  two  or  more  assessments  being  made  at  one  time,  if 
only  five  dollars  is  required  to  be  paid  at  one  time.  lb.  Penobscot  Railw.  v. 
Dumnier,  40  Maine  R.  172.  And  the  same  principle  already  stated,  that  where 
the  conditions  of  a  subscription  required  seventy-five  per  cent  of  the  estimated 
cost  of  any  section  of  the  road  to  be  subscribed,  by  responsible  ■persons,  before 
its  construction  should  be  commenced,  if  the  subscriptions  were  obtained  in 
good  faith,  assessments  will  be  valid,  although  some  of  the  subscriptions  to  make 
up  the  amount,  prove  worthless,  is  here  also  maintained.     lb. 

And  where  the  charter  of  the  company  requires  that  the  capital  stock  be  not 
less  than  five  hundred,  nor  more  than  ten  thousand  shares,  of  $100  each,  and 
authorizes  the  directors  to  assess  upon  five  hundred  shares,  as  soon  as  subscribed, 
and  from  time  to  time  to  enlarge  the  capital  to  the  maximum  amount  named  in 
the  charter,  all  the  shares  to  be  equally  assessed,  it  is  not  necessary  for  the  com- 
pany to  define  their  capital,  within  the  prescribed  limits,  before  making  calls. 
White  Mountains  Railw.  v.  Eastman,  34  N.  H.  R.  124. 

It  is  doubtful  if  the  directors  of  a  railway  have  power  to  release  subscribers  to 
stock,  but  at  all  events,  where  the  release  is  optional  with  the  subscriber,  he 
must  make  his  election  to  be  released,  and  in  a  reasonable  time.  Penobscot  & 
Ken.  Railw.  v.  Dunn,  39  Maine  R.  587.  See  also  Troy  &  Greenfield  Railw.  v. 
Newton,  8  Gray,  596. 

VOL.   I.  12 


178  ASSESSMENTS   OR   CALLS.  §  51. 

condition,  by  having  acted  as  a  shareholder  and  officer  in  the 
corporation,  and  contributed  towards  the  expenses  of  the  com- 
pany. 

4.  That  corporators,  by  any  acts  or  declarations,  cannot  re- 
lieve the  corporation  from  its  obligation,  to  possess  the  capital 
stock,  required  by  its  charter.8 

7.  Where  the  charter  of  a  railway  company  provided  for  assess- 
ments by  the  directors  of  the  company  upon  the  shares  of  the 
stock,  as  they  might  deem  expedient  and  necessary  in  the  execu- 
tion and  progress  of  the  work,  provided  "  that  no  assessment 
shall  be  laid  upon  any  share  in  said  corporation  of  a  greater 
amount  than  one  hundred  dollars  in  the  whole,  *  *  *  and  if  a 
greater  amount  of  money  shall  be  necessary  to  complete  said  road 
it  shall  be  raised  by  creating  new  shares,"  it  was  held  that  the 
charter  limited  the  amount  of  all  the  assessments  to  one  hundred 
dollars  on  a  share,  and  that  assessments  beyond  that  sum,  made 
for  the  purpose  of  paying  the  debts  of  the  company,  were  illegal.8 

8.  "Where  the  charter  of  a  railway  company  fails  to  fix  the 
number  of  shares  of  the  capital  stock,  it  must  be  presumed  to 
have  been  the  purpose  of  the  legislature  that  the  corporation 
should  limit  the  number.  And  this  must  be  done  before  any 
valid  assessments  can  be  made.  In  such  case,  if  the  number 
fixed  exceed  the  number  subscribed,  the  company  may  change 
the  number ;  but  the  assessments  must  be  made  upon  the  whole 
number,  and  if  an  assessment  be  made  before  the  number  ulti- 
mately fixed  is  subscribed,  it  will  be  irregular  and  void.  A  sub- 
scriber who  has  paid  one  assessment  is  not  thereby  precluded 
from  insisting  upon  this  irregularity  in  defence  to  others.9 

9.  Where  the  charter  of  a  railway  company  as  originally  grant- 
ed limited  the  amount  of  stock  at  a  point  which  the  subscription 
never  reached,  but  by  a  subsequent  alteration  of  the  charter  the 
amount  of  the  capital  stock  was  reduced,  and  after  the  subscrip- 
tions reached  that  amount  the  company  was  duly  organized,  it 
was  held  that  the  alteration  in  the  charter  did  not  release  prior 
subscribers.10 

8  Great  Falls  &  Conway  R.  Co.  v.  Copp,  38  N.  H.  R.  124. 

9  Som.  &  Ken.  R.  Co.  v.  Cushing,  45  Me.  R.  524. 

10  Bedford  Railw.  Co.  v.  Bowser,  48  Penn.  St.  29. 


§  52.  CALLS   MAY   BE   MADE   PAYABLE   BY   INSTALMENTS.  179 

*SECTION    VI. 
Calls  may  be  made  payable  by  Instalments. 

§  52.  It  was  at  one  time  considered  that  calls  made  payable 
by  instalments  were  invalid.1  But  it  seems  now  to  be  settled 
that  such  mode  of  making  calls,  where  the  directors  of  the  com- 
pany have  an  unlimited  discretion,  as  to  the  time  and  mode  of 
requiring  payments  of  the  subscriptions,  is  unobjectionable.2 

But  where  the  subscription  contains  a  provision,  that  payment 
shall  be  made,  at  such  times  and  places  as  should  thereafter  be 
directed  by  the  directors,  and  shall  be  applied  to  the  construction 
of  the  road,  it  was  held,  that  the  subscription  did  not  become 
payable,  until  the  directors,  at  a  regular  meeting,  had  fixed  the 
time  and  place  of  payment.3  But  it  is  further  held,  in  this  case, 
that  it  is  not  necessary  to  give  notice  to  the  subscribers  of  the 
time  and  place  of  payment.3  This  point  in  the  decision  seems 
not  altogether  in  accordance  with  the  usual  practice  in  such 
cases,  or  the  general  course  of  decision  in  regard  to  calls,  which 
upon  general  principles  must  be  notified  to  subscribers  before 
an  action  can  be  maintained.  But  where  the  subscription  is 
made  payable  in  instalments  of  ten  per  cent  every  sixty  days  as 
the  work  progresses,  it  is  not  important  that  any  formal  call  or 
demand  be  made.4 

Where  the  charter  gives  the  corporation  power  to  collect  sub- 
scriptions to  the  capital  stock  by  such  instalments  as  the  presi- 
dent and  directors  shall  deem  proper,  they  may  make  contracts 
with  subscribers  for  the  payment  of  subscriptions  in  any  reason- 
able instalments,  as  to  time  and  place,  and  if  such  condition 
were  ultra  vires,  it  would  render  the  whole  contract  void,  and 
not  the  condition  merely.5 

1  Ambergate,  N.  &  Boston  &  E.  J.  R.  v.  Coulthard,  6  Railw.  C.  218 ;  Stratford 
&  M.  R.  v.  Stratton,  2  B.  &  Ad.  518. 

2  London  &  M.  W.  R  v.  M'Michael,  4  Eng.  L.  &  Eq.  459 ;  Ambergate  R. 
v.  Norcliffe,  4  Eng.  L.  &  Eq.  461  ;  Birkenhead,  L.  &  Ch.  R.  v.  Webster,  6 
Railw.  C.  498. 

3  Ross  v.  Lafayette  &  Ind.  Railw.,  6  Porter  (Ind.),  297. 

4  Breedlove  v.  M.  &  F.  Railw.,  1 2  Ind.  R.  1 14 ;  Smith  v.  Ind.  &  111.  Railw.,  Id.  61. 
s  Roberts  v.  Ohio  &  Mobile  Railw.  32  Mississippi  R.  373. 

*81 


180 


ASSESSMENTS   OR   CALLS. 


§53. 


SECTION    VII. 


Party  liable  for  Calls. 


1 .  Subscribers  liable  to  calls. 

2.  6.  What  constitutes  subscription  to  a  capi- 

tal stock. 

3.  How  a  ptirchaser  of  stock  becomes  liable  to 

the  company. 

4.  One  may  so  conduct  as  to  estop  him  from 

denying  his  liability. 

5.  The  register  of  the  company  evidence  of 

membership. 

6.  Subscriptions  must  be  made  in  conformity 

to  charter. 


7.  Transferee  liable  for  calls.     Subscriber 

also  in  some  cases. 

8.  Original,  books  of  subscription  primary 

evidence. 

9.  //  lost  secondary  evidence  admissible. 

10.  What  acts  will  constitute  one  a  share- 

holder. 

11.  May  take  and  negotiate  or  enforce  notes 

for  subscriptions. 

12.  But  note  fraudulently  obtained  not  en- 

forceable. 


§  53.  1.  All  the  original  subscribers  to  the  stock  in  a  railway 
company  are  usually  made  liable  to  calls,  by  the  charter  of  the 
company,  or  by  general  statute.  * 

2.  Some  question  has  arisen  in  the  English  courts,  as  to  what 
*  is  necessary  to  constitute  one  a  subscriber.  In  an  early  case l 
upon  this  subject,  it  was  held,  that  the  word  "  subscriber,"  in  the 
act  of  parliament  constituting  the  company,  applied  only  to 
those  who  had  stipulated  that  they  would  make  payment,  and 
not  to  all  those  who  had  advanced  money ;  and  that  one,  who 
was  named  in  the  recital  of  the  act,  as  one  of  the  original  pro- 
prietors, and  who  had  paid  a  deposit  on  eight  shares,  but  who 
had  not  signed  any  contract,  was  not  a  subscriber  within  the 
meaning  of  the  act,  and  not  liable  to  be  sued  by  the  directors  for 
calls  on  the  remainder  of  such  shares. 

3.  This  is  the  generally  received  opinion  upon  that  subject,  in 
this  country.  In  one  case,2  a  plea  to  an  action  to  recover  calls 
on  stock  subscribed,  that  another  person  had  agreed  to  take  the 
stock,  and  that  the  commissioners  had  counted  this  stock  to  such 
other  person,  is  insufficient.  The  signature  of  the  first  subscriber 
should  have  been  erased,  and  that  of  the  other  substituted,  or 
something  done  to  hold  the  latter  liable.     A  subscriber  for  stock 

1  Thames  Tunnel  Company  v.  Sheldon,  6  B.  &  C.  341. 
5  Ryder  v.  Alton  &  Sangamon  R.,  13  HI.  R.  516. 

*82 


§53.  PARTY   LIABLE   FOR   CALLS.  181 

cannot  subrogate  another  person  to  his  obligation,  without  a 
substitution  of  his  name  upon  the  books  of  the  company,  or 
some  other  equivalent  act  recognized  by  the  charter  and  by-laws 
of  the  company. 

4.  But  the  principal  difficulty,  in  regard  to  liability  for  calls, 
arises,  where  there  have  been  transfers,  and  the  name  of  the 
transferee  not  entered  upon  the  books  of  the  company.  For 
whenever  the  name  of  the  vendee  of  shares  is  transferred  to  the 
register  of  shareholders,  the  cases  all  agree  that  the  vendor  is 
exonerated,  (unless  there  is  some  express  provision  of  law,  by 
which  the  liability  of  the  original  subscriber  still  continues,)  and 
the  vendee  becomes  liable  for  future  calls.3  And  the  vendee 
having  made  such  representation  to  the  company,  as  to  induce 
them  to  enter  his  name  upon  the  register  of  shares,  is  estopped 
to  deny  the  validity  of  the  transfer.4  And  even  where  the  party 
has  represented  himself  to  the  company  as  the  owner  of  shares, 
and  sent  in  scrip  certificates,  which  had  been  purchased  by  him, 
claiming  to  be  registered  as  a  proprietor,  in  respect  thereof,  and 
had  received  from  the  company  receipts  therefor,  with  a  notice 
that  they  would  be  exchanged  for  sealed  certificates  on  demand, 
he  was  held  estopped  *  to  deny  his  liability  for  calls,  although  his 
name  had  not  been  entered  upon  the  register  of  shareholders,  or 
any  memorial  of  transfer  entered,  as  required  by  the  act.5  And 
where  one  has  paid  calls  on  shares,  or  attended  meetings  of  the 
company,  as  the  proprietor  of  shares,  he  is  estopped  to  deny  such 
membership.6 

5.  The  holders  of  scrip  certificates  are  properly  entered  as 
proprietors  of  shares  before  the  passing  of  the  act,  although  they 
have  neither  signed  the  parliamentary  contract,  nor  been  original 
subscribers ;  and  the  register-book  of  shareholders,  which  is  re- 

3  Sheffield  &  Ashton-under-Lyne  &  Man.  R.  v.  Woodcock,  2  Railw.  C.  522 ; 
s.  c.  7  M.  &  W.  574;  London  &  Grand  J.  R.  v.  Freeman,  2  Railw.  C.  468; 
s.  c.  2  M.  &  G.  606 ;  post,  §  54. 

4  Sheffield,  Ash.  &  M.  R.  v.  Woodcock,  supra ;  London  &  Grand  J.  R.  Free- 
man, supra. 

5  Cheltenham  &  Great  Western  Union  R.  v.  Daniel,  and  Same  v.  Medina, 
2  Railw.  C.  728.  And  this  being  matter  of  estoppel  in  pais,  may  be  used  in 
evidence,  in  answer  to  the  defence,  without  beiug  pleaded. 

6  London  &  Grand  J.  R.  v.  Graham,  2  Railw.  C.,870;   s.  c.  1  Q.  B.  271. 

*8S 


182  ASSESSMENTS    OR   CALLS.  §  53. 

quired  by  the  statute  to  be  kept,  in  a  prescribed  form,  by  the 
company,  though  irregularly  kept,  is  prima  facie  evidence  who 
are  proprietors.7 

6.  The  subscription  for  stock,  to  be  valid,  must  be  made  in 
conformity  with  the  act.  So  that  where  it  was  required  to  be 
made  in  such  form  as  to  bind  the  subscriber  and  his  heirs,  it  was 
deemed  requisite  to  be  made  under  seal.8  But  such  a  provision 
is  of  no  force  in  this  country,  simple  contracts  being  of  the  same 
force  as  against  heirs  as  specialties. 

7.  If  by  the  act  of  incorporation  the  shares  are  made  assign- 
able without  restriction,  and  no  express  provision  exists  in  re- 
gard to  the  party  liable  for  calls,  it  would  seem  to  follow,  upon 
the  general  principles  of  the  law  of  contract,  that  the  proprietor 
of  the  share,  for  the  time  being,  is  liable  for  calls.  And  where 
certain  formalities  are  requisite,  in  the  transfer  of  shares,  and 
these  have  been  complied  with  on  the  part  of  the  transferee,  or 
waived  by  the  company  at  his  request,  his  liability  to  calls  then 
attaches.9  The  liability  of  the  original  subscriber  often  con- 
tinues, at  the  election  of  the  company,  after  that  against  the 
vendee  attaches,  but  when  the  company  consent  to  accept  the 
name  of  the  transferee,  that  of  the  subscriber,  or  former  pro- 
prietor, ceases.10 

8.  It  seems  to  be  regarded  as  settled  law,  that  the  best  evi- 
dence of  an  original  subscription  to  the  capital  stock  of  a  rail- 
way company  is  the  production  of  the  original  subscription  book, 
or  the  book  of  records  of  the  company  on  which  the  subscrip- 
tions were  made.11 

T  Birmingham,  Boston  &  Th.  J.  R.  v.  Locke,  2  Railw.  C.  867;  s.  c.  1  Q.  B. 
256. 

8  Cromford  &  High  Peak  R.  v.  Lacey,  3  Y.  &  Jer.  80.     See  ante,  §  18,  n.  2. 

'  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R.  36 ;  Aylesbury  R.  v.  Mount,  5 
Scott,  New  R.  127;  West  Philadelphia  Canal  Co.  v.  Innes,  3  Whart.  198; 
Mann  v.  Currie,  2  Barb.  Sup.  Ct.  294 ;  Hall  v.  U.  S.  Insurance  Co.,  5  Gill, 
484 ;  Bend  v.  Susquehannah  Bridge  Co.,  6  liar.  &  J.  1 28 ;  Angell  &  Ames,  ch. 
15,  §  534. 

10  Post,  §  54. 

11  Graff's  executor  v.  Pittsburg  &  Steubenville  Railw.  Co.,  11  Am.  Railw. 
Times,  No.  14.  These  subscriptions  are,  in  fact,  sometimes  made  upon  different 
books,  and  then  brought  together  upon  one  book,  for  the  purpose  of  permanent 
preservation.  But  it  would  seem  there  should  be  evidence  of  the  original  sub- 
scription. 


§  54.  RELEASE   FROM   LIABILITY  FOR   CALLS.  183 

9.  But  where  the  books  are  shown  not  to  be  in  the  proper 
place  of  deposit  and  custody,  and  no  trace  can  be  found  of  their 
present  existence  elsewhere,  secondary  evidence  is  admissible. 
And  the  court  decide  the  question  of  loss,  as  a  preliminary  one 
to  the  admission  of  the  secondary  evidence.11 

10.  One  who  accepts  a  subscription  made  by  another  on  his 
behalf,  and  pays  the  calls  made  thereon  and  receives  a  certificate 
of  ownership,  is  responsible  as  a  shareholder ;  and  it  makes  no 
difference  that  his  name  does  not  appear  upon  the  transfer  books 
or  the  alphabetical  list  of  stockholders  as  a  transferee  of  stock. 
And  one  may  become  a  shareholder  without  receiving  a  certifi- 
cate of  stock.12 

11.  It  seems  clear  that  railway  companies  may  accept  prom- 
issory notes  in  payment  of  subscriptions,  and  either  negotiate  or 
enforce  them  by  suit.13  The  questions  of  pleading  and  evidence 
which  may  be  raided  in  suits  upon  such  notes  are  extensively 
discussed  in  the  case  last  cited. 

12.  And  where  the  subscription  to  railway  stock  is  dependent 
upon  the  condition  that  no  calls  shall  be  made  until  work 
should  be  begun  upon  a  particular  section  of  the  road,  and  the 
subscriber  was  induced  to  execute  his  note  for  the  amount  upon 
the  representation  of  the  agents  of  the  company  that  work  had 
been  so  commenced,  when  in  fact  it  had  not,  the  not  ?  cannot  be 
enforced.14 


*SECTION    VIII. 
Release  from  liability  for  Calls. 


1,  2.  Wliere  the  transfer  of  shares,  without 
registry,  will  relieve  the  proprietor  from 
calls. 

3.  Where  shares  are  forfeited,  by  express  con- 
dition, subscriber  no  longer  liable  for  calls. 


4.  Dues  cannot  be  enforced  which  accrue  upon 
shares  after  they  were  agreed  to  be  can- 
celled. 


54.    1.   One  may  relieve  himself  of  his  liability  for  calls,  by 

12  Burr  v.  Wilcox,  6  Bosw.  198. 

13  Goodrich  v.  Reynolds,  31  HI.  R.  490.     See  also  Straus  v.  Eagle  Ins.  Co.,  5 
Ohio  St.  59. 

"  Taylor  v.  Fletcher,  15  Ind.  R.  80. 

*84 


184  ASSESSMENTS    OR    CALLS.  §  54. 

the  transfer  of  his  shares,  and  the  substitution  of  the  name  of  his 
assignee  for  his  own  upon  the  books  of  the  company.  But  un- 
til this  change  upon  the  books  of  the  company  is  made,  they  are 
nt  liberty  to  hold  the  original  subscriber  liable,  if  they  so  elect.1 
But  where  the  act  of  incorporation  of  a  joint-stock  company  de- 
clared the  shares  should  be  vested  in  subscribers,  their  executors 
and  assigns,  with  power  to  the  subscribers  to  assign  their  shares, 
and  a  committee,  to  be  appointed  under  the  act,  were  authorized 
to  make  calls  upon  the  proprietors  of  shares,  it  was  held,  that  an 
original  subscriber,  who  had  transferred  his  shares,  was  no  longer 
liable  to  calls.2 

2.  But  this  case  is  determined  upon  the  express  provisions  of 
the  charter  of  the  company.  The  general  rule,  in  England,  at 
present,  under  their  consolidated  acts,  is  undoubtedly  as  stated 
above.  And  we  see  no  good  reason  why  it  should  not  equally 
apply  in  this  country.  It  would  seem  to  be  the  only  mode  of 
securing  the  ultimate  payment  of  calls.  But  some  of  the  cases 
seem  to  assume,  that  the  mere  transfer  of  the  shares  in  the  mar- 
ket does  exonerate  the  subscriber  from  the  payment  of  future 
calls.  But  this  depends  chiefly  upon  the  provisions  of  special 
charters,  and  the  general  laws  of  the  state,  applicable  to  the 
subject.3 

*  3.  Where  shares  are  allotted  to  one  upon  the  express  con- 
dition to  be  forfeited  if  a  certain  deposit  is  not  paid  in  a  certain 
time,  and  nothing  more  is  done  by  the  allottee,  he  is  not  liable 

1  Ante,  §47,  and  cases  there  cited.  In  Everhart  v.  West  Chester  and  Phila- 
delphia Railw.,  28  Penn.  St.  339,  it  is  said  that  a  transfer  of  stock,  made  for 
the  purpose  of  exonerating  a  subscriber,  without  the  consent  of  the  company, 
is  not  a  valid  defence  to  an  action  against  him  for  the  purchase-money  of  the 
shares  subscribed.     Ante,  §  32. 

2  Huddersfield  Canal  Company  v.  Buckley,  7  T.  R.  36,  42. 

8  In  West  Philadelphia  Canal  Co.  v.  Innes,  3  Wharton,  198,  it  was  held,  that 
where  the  proprietor  of  shares  of  the  plaintiff's  stock  transferred  them  upon  the 
books  of  the  company,  after  calls  were  made,  but  before  they  fell  due,  that  the 
transferee  was  liable  for  such  calls,  although  he  had  never  received  certificates, 
or  given  notice  of  the  acceptance  of  the  transfer.  And  it  was  held  to  make  no 
difference,  that  the  transfer  was  from  an  original  subscriber,  without  considera- 
tion, and  that  the  holder  is  nevertheless  liable  for  unpaid  calls.  Mann  v.  Pentz, 
2  Sand.  Ch.  258;  Hartford  &  New  H.  R.  v.  Boorman,  12  Conn.  R.  530 ;  Ayles- 
bury R.  v.  Mount,  5  Scott,  New  R.  127. 
*85 


§55. 


DEFENCES   TO   ACTIONS   FOR   CALLS. 


185 


for  calls,  although  the  company  have  entered  his  name  upon  the 
register  of  shares  as  a  shareholder.4 

4.  Where  the  corporation  resolve  to  release  subscribers  and 
to  cancel  their  stock  upon  making  certain  payments,  which  are 
made  and  the  sto«k  cancelled,  the  company  cannot  enforce  any 
dues  on  such  shares  which  subsequently  accrue,5  since  the  former 
arrangement  amounted  to  an  accord  and  satisfaction  of  all  claim 
on  the  part  of  the  company.  But  if  the  company  thereby  mate- 
rially lessened  the  remedy  of  creditors,  they  might  possibly  in- 
terfere. 

SECTION    IX. 


Defences  to  actions  for  Calls. 


1.  Informality  in  organization  of  company 

insufficient. 

2.  Slight  acquiescence  estops  the  party  in  some 

cases. 

3.  4.  Default  in  first  payment  insufficient. 

5.    Company  and  subscriber  may  waive  that 
condition. 


6.  Contract  for  stock,  to  be  paid  in  other 

stock. 

7,  8.  Infancy.     Statute  of  limitations  and 

bankruptcy. 
9.   One  commissioner  can  give  no  valid  as- 
surance as  to  the  route. 
10.    What  representations  matters  of  opinion. 


§  55.  1.  It  is  certainly  not  competent  for  a  subscriber,  when 
sued  for  calls,  to  go,  in  his  defence,  into  every  minute  deviation 
from  the  express  requirements  of  the  charter,  in  the  organization 
and  proceedings  of  the  company.  Any  member  of  the  associa- 
tion, who  intends  to  hold  the  company  to  the  observance  of  those 
matters  which  are  merely  formal,  should  be  watchful,  and  inter- 
pose an  effectual  barrier  to  their  further  progress,  at  the  earliest 
opportunity,  by  mandamus,  or  injunction  out  of  chancery,  or 
other  appropriate  mode.1     In  cases  of  this  kind  often,  where  vast 

4  Waterford,  Wexford,  Wicklow,  &  D.  R.  v.  Pidcock,  18  Eng.  L.  &  Eq.  517. 
8.  c.  17  Jur.  26 ;  s.  c.  22  Law  J.  Rep.  (n.  s.)  Exch.  146  ;  s.  C.  8  Exch.  R.  279. 
Where  the  company  accept  a  conveyance  of  shares  to  themselves,  it  will  ex- 
onorate  the  owner  from  calls.  But  a  sale  to  another  company  of  all  the  ef- 
fects of  the  company,  will  not  release  the  shareholders  from  calls  already  made. 
Plate  Glass  Insurance  Co.  v.  Sunley,  29  Law  Times,  277. 

5  Miller  v.  Second  Jefferson  Building  Association,  50  Penn.  St.  32.  And  where 
the  company  accept  another  in  the  place  of  the  original  subscriber,  the  latter  is 
wholly  released.     Haynes  v.  Palmer,  13  Louis.  Ann.  240. 

1  The  London  &  Brighton  Railw.  Co.  v.  Wilson,  6  Bing.  N.  C.  135.    This  case 


186  ASSESSMENTS   OR   CALLS.  §  55. 

expense  has  been  incurred,  and  important  interests  are  at  stake, 
courts  will  incline  to  conclude  a  member  of  the  association,  by 
the  briefest  acquiescence,  in  any  such  immaterial  irregularity, 
and  often,  in  regard  to  those,  which,  if  urged  in  season,  might 
have  been  regarded  as  of  more  serious  moment.  In  one  case,1 
Tindalj  Ch.  J.,  says,  in  regard  to  the  offer  of  a  plea,  that  the 
money  sued  for,  being  the  amount  of  a  call,  was  *  intended  for 
other  purposes  than  those  warranted  by  the  act,  "  It  seems  to 
me  it  was  never  intended,  nor  ought  it  to  be  allowed,  that  so 
general  a  question  as  that  should  be  litigated,  in  the  question, 
whether  a  call  is  due  from  an  individual  subscriber."  And  it 
was  held  no  sufficient  ground  of  enjoining  the  directors  from 
making  calls,  that  the  proceedings  had  been  such  as  to  amount 
to  an  abandonment  of  the  enterprise,  as  it  was  possible  that 
there  were  still  legal  obligations  to  answer.2  And  where  the 
directors  were  authorized  to  limit  the  number  of  shares,  but 
could  not  proceed  with  the  road  until  two  hundred  and  fifty 
shares  were  "subscribed,  and  after  that  number  were  taken  they 
resolved  to  close  the  books,  it  was  held  that  this  vote  was  equiv- 
alent to  a  vote  fixing  the  number  of  shares,  and  that  the  com- 
pany might  therefore  proceed  to  make  and  enforce  calls,  under 
the  statute,  and  to  collect  the  deficiency  remaining,  after  the 
sale  of  forfeited  stock.3 

2.  But  where  the  statute  prescribes  the  terms  on  which 
shares  may  be  sold,  it  must  be  strictly  followed,  or  the  sale  will 
be  void,  as  where  the  prescribed  notice  is  not  given.4  And  it 
would  seem,  that  the  courts  are  reluctant  to  admit  defences  to  ac- 
tions for  calls,  upon  the  ground  of  informality  in  the  proceedings 
of  the  company,  or  even  of  alleged  fraud,  where  there  has  been 
any  considerable  acquiescence  on  the  part  of  the  shareholder.5 

decides,  that  a  plea,  that  the  company  had  made  deviations  in  their  line,  and 
that  the  money  sued  for  was  needed  only  in  regard  to  such  deviations,  could  not 
be  entertained  or  regarded  as  a  proper  inquiry  in  an  action  for  calls  upon  shares ; 
and  so  also  of  a  plea,  that  fewer  shares  had  been  allotted  than  the  act  required. 
Walford,  279  ;  Wight  v.  Shelby  Railway,  16  B.  Monr.  5. 

2  Logan  v.  Courtown,  5  Eng.  L.  &  Eq.  171. 

8  Lexington  &  West  Cambridge  R.  v.  Chandler,  13  Met.  311. 

4  Portland,  Saco,  &  Portsmouth  R.  v.  Graham,  11  Met.  1. 

6  Walford,  278,  279;  Cromford  &  High  P.  R.  v.  Lacey,  3  Y.  &  Jer.  80; 
*86 


§  55.  DEFENCES   TO   ACTIONS   FOR   CALLS.  187 

3.  It  seems  to  have  been  held,  in  some  cases,  that  a  subscriber 
for  stock  may  defend  against  an  action  for  calls,  upon  the  ground 
that  he  did  not  pay  the  amount  required  by  the  charter  to  be 
paid  down  at  the  time  of  subscription.6 

4.  But  it  is  questionable  how  far  one  can  be  allowed  to  plead 
his  own  non-performance  of  a  condition  in  discharge  of  his  un- 
dertaking. And  a  different  view  seems  to  have  obtained  to  some 
extent.7  It  has  been  held  the  stockholder  cannot  object,  that  he 
*  has  not  complied  with  the  charter,  after  having  voted  at  the 
election  of  officers,  or  otherwise  acted  as  a  shareholder.8  And 
so  also  where  the  subscription  is  made,  while  defendant  held  the 
books  of  the  company  and  acted  as  commissioner.9  And  pay- 
Mangles  v.  Grand  Collier  Dock  Co.,  2  Railw.  C.  359 ;  Thorpe  v.  Hughes,  3 
Mylne  &  Cr.  742. 

6  Highland  Tump.  Co.  v.  McKean,  11  Johns.  98;  Jenkins  v.  Union  Turnp. 
Co.,  1  Caines's  Cas.  in  Error,  86  ;  Hibernia  Turnpike  Co.  v.  Henderson,  8  S.  & 
R.  219;  Charlotte  &  C.  R.  v.  Blakely,  3  Strob.  245. 

T  Henry  v.  The  Vermilion  R.  17  Ohio  R.  187.  A  similar  rule  is  recognizecf  in 
Louisiana,  in  the  case  of  Vicks.  S.  &  Texas  Railw.  v.  McKean,  12  La.  Ann.  638. 

8  Clark  v.  Monongahela  Nav.  Co.,  10  Watts,  364.  Nor  can  a  subscriber, 
after  having  transferred  his  stock  to  another,  thus  treating  it  as  a  valid  security, 
object,  in  the  trial  of  a  suit  against  him  on  the  original  subscription,  that  the 
same  was  originally  invalid,  by  reason  of  the  non-payment  of  the  sums  requisite 
to  give  it  validity,  at  the  time  of  making  the  subscription.  Everhart  v.  West 
Chester  &  Ph.  Railw.,  28  Penn.  St.  339. 

And  where  commissioners  were  appointed,  by  an  act  of  the  legislature,  and 
were  authorized  to  receive  subscriptions  for  the  purpose  of  constructing  a  rail- 
way, no  subscription  to  be  valid  unless  five  dollars  was  paid  upon  each  share 
at  the  time  of  subscribing ;  the  act  providing  that  when  a  certain  number  of 
shares  shall  have  been  so  subscribed,  and  the  same  certified  under  the  oath  of 
the  commissioners  to  the  governor,  he  should  issue  letters-patent,  incorporating 
the  subscribers,  and  such  as  should  thereafter  subscribe,  and  this  was  done,  and 
the  company  duly  organized,  it  was  held : 

That  the  act  imposed  no  restriction  upon  the  corporation  after  it  was  organ- 
ized, in  regard  to  the  payment  of  the  five  dollars  at  the  time  of  subscription. 
That  the  condition,  that  subscriptions  should  not  be  valid  till  a  certain  amount 
Avas  subscribed,  was  one  which  the  parties  had  a  right  to  annex  to  the  contract 
of  subscription,  and  as  such,  was  valid,  and  the  subscriptions  could  not  be  en- 
forced till  the  condition  was  performed.  Philadelphia  &  West  Chester  Railw. 
v.  Hickman,  28  Penn.  St.  318.  See  also  Black  River  &  Utica  Railw.  Co.  v. 
Clarke,  25  N.  Y.  R.  208  ;  H.  &  P.  Plank  Road  Co.  v.  Bryan,  6  Jones  Law,  82 ; 
Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  R.  491. 

8  Highland  Turnp.  Co.  v.  McKean,   11  Johns.  98;    Grayble  v.  The  York 

#87 


188  ASSESSMENTS.  OR   CALLS.  §  55. 

ment  before  the  books  are  closed,  has  been  held  sufficient  to 
bind  the  subscriber.10  So  also  if  the  sum  have  been  collected  by- 
suit.11  And  a  promissory  note  has  been  held  good  payment, 
where  the  charter  required  cash  on  the  first  instalment,  at  the 
time  of  subscription.12  And,  by  parity  of  reason,  if  the  subscrip- 
tion binds  the  subscriber  to  pay  for  the  stock  taken,  in  conform- 
ity to  the  requisitions  of  the  charter,  which  is  the  more  generally 
received  notion  upon  the  subject  at  present,  we  do  not  well  com- 
prehend why  the  subscription  itself  may  not  be  regarded  as 
effectual,  to  create  the  subscriber  a  stockholder,  and  as  much  a 
compliance  with  the  condition  to  pay,  as  giving  a  promissory 
note.  In  either  case,  the  company  obtain  but  a  right  of  action 
for  the  money,  and  if  the  party  can  be  allowed  to  urge  his  own 
default  in  defence,  it  is  perhaps  no  compliance  with  the  charter. 
But  upon  the  ground  that,  so  far  as  the  subscriber  is  concerned, 
the  company  may  waive  this  condition,  upon  what  is  equivalent 
to  payment,  it  ought  also  to  be  equally  held,  that  when  the  sub- 
scriber has  obtained  such  a  waiver,  for  his  own  ease,  he  shall  be 
estopped  to  deny,  that  it  was  so  far  a  compliance  with  the  char- 
ter as  to  render  the  contract  binding. 

5.  And  upon  the  other  hand,  the  company  having  consented 
to  accept  the  subscriber's  promise,  instead  of  money,  for  the  first 
instalment,  cannot  defeat  his  right  to  be  regarded  as  a  stock- 
holder, on  account  of  his  not  complying  with  a  condition  which 
they  have  expressly  waived.  It  would  seem,  that  under  these 
circumstances,  the  immediate  parties  to  the  contract  could  not 
obtain  any  advantage  over  each  other,  by  reason  of  the  waiver, 
by  mutual  consent,  of  strict  performance  of  such  condition.  But 
that  the  objection  must  come  properly  from  some  other  quarter, 
either  the  *  public,  or  the  other  shareholders.  But  possibly  the 
cases  decided  upon  this  subject  do  not  justify  any  such  relaxa- 

&  Gettysburg  Turnp.  Co.,  10  Serg.  &  Rawle,  269.  So  also  if  one  act  as  a 
stockholder  in  the  organization  of  the  company.  Greenville  &  Columbia  Railw. 
v.  Woodsides,  5  Rich.  145. 

10  Klein  v.  Alton  &  Sangamon  Railw.,  13  111.  R.  514. 

11  Hall  v.  Selma  &  Ten.  Railw.,  6  Alabama,  741. 

12  McRae  v.  Russell,  12  Ired.  224 ;  Selma  &  Ten.  Railw.  v.  Tipton,  5  Ala- 
bama, 787;  Tracy  v.  Yates,  18  Barb.  152;  Greenville  &  Columbia  Railw.  v. 
Woodsides,  5  Rich.  145 ;  Mitchell  v.  Rome  Railw.,  17  Georgia  R.  574. 

*S8 


§55.  DEFENCES   TO   ACTIONS   FOR   CALLS.  189 

tion,  even  between  the  parties  to  the  immediate  contract  of  sub- 
scription. Upon  general  principles,  applicable  to  the  subject, 
as  educed  from  the  law  of  contracts,  we  see  no  objection  to  the 
waiver  of  such  a  condition  on  behalf  of  the  company.  And  if 
there  be  any  objection  upon  other  grounds,  it  is  not  for  the  ben- 
efit of  the  subscriber.13 

13  It  has  been  held  that  the  misstatement  of  the  length  of  the  road,  in  the 
articles  of  association,  if  there  be  no  fraud ;  or  the  lease,  or  sale,  of  the  fran- 
chises of  the  corporation  to  another  company,  which  is  void ;  or  the  neglect  to 
make  the  whole  road,  even  without  legislative  sanction,  will  not  exonerate  a 
subscriber  from  paying  calls.  Troy  &  Rutland  Railw.  v.  Kerr,  17  Barb.  581. 
But  where  a  preliminary  subscription  is  required,  it  must  be  absolute  and  not 
dependent  upon  conditions.  Troy  &  Boston  Railw.  v.  Tibbits,  18  Barb.  297. 
But  a  condition  that  provides  for  interest,  by  way  of  dividends,  to  paying  sub- 
scribers, until  the  full  completion  of  the  road,  at  the  expense  of  subscribers  who 
do  not  pay,  or  one  that  imposes  a  limitation  upon  the  directors  in  calling  in  stock, 
is  void  as  being  against  good  policy.     lb. 

In  a  recent  case  in  Kentucky,  Wight  v.  Selby  Railw.,  16  B.  Monr.  5  (1855), 
it  was  held,  that  a  subscription  to  stock,  in  a  railway,  is  not  rendered  invalid  by 
reason  of  the  subscriber's  failure  to  pay  a  small  sum  required  by  the  charter  to 
be  paid  upon  each  share  when  he  subscribed.  Simpson,  J.  "  It  was  their  duty 
to  pay  it,  at  the  time  the  stock  was  subscribed,  but  they  should  not  be  allowed 
to  take  advantage  of  their  own  wrong,  and  release  themselves  from  their  whole 
obligation,  by  a  failure  to  perform  part  of  it."  This  seems  to  us  a  sound  view  of 
the  subject,  and  the  only  one,  which  is  consistent  with  the  general  principles  of 
the  law  of  contract,  as  applicable  to  the  question. 

In  a  still  more  recent  case,  S.  subscribed  for  $  500  of  stock  in  a  railway  com- 
pany upon  the  understanding  that  the  first  ten  per  cent,  required  by  law  to  be 
paid  in  cash  upon  subscribing  should  be  paid  by  his  services  in  securing  subscrip- 
tions and  right  of  way.  He  subsequently  presented  an  account  against  the  com- 
pany for  services,  from  which  it  appeared,  that  at  the  date  of  the  subscription  the 
company  was  indebted  to  him  in  an  amount  greater  than  the  cash  payment  re- 
quired, in  which  account  he  applied  and  credited  $  50  for  ten  per  cent,  upon  his 
subscription,  and  $  50  for  the  first  call  made  thereon.  The  account  was  allowed 
by  the  company  and  the  balance  paid  by  S.  .  Held,  that  this  was  a  sufficient  com- 
pliance with  the  statute  in  respect  to  the  payment  of  the  first  ten  per  cent.,  and 
made  the  subscription  obligatory  upon  S.  Beach  v.  Smith,  30  N.  Y.  R.  116. 
See  also  Vicksburg,  Sh.  and  Texas  R.  Co.  v.  McKean,  12  La.  Ann.  638. 

In  this  case  it  is  further  held,  to  be  no  valid  defence  to  a,  subscription  to  the 
stock  of  a  railway,  that  it  was  delivered  as  an  escrow  to  one  of  the  commission- 
ers appointed  to  receive  subscriptions.  It  should  have  been  delivered  to  a  third 
person,  to  become  effectual  as  an  escrow.  Such  subscribers  are  presumed  to 
know  the  conditions  of  the  charter  under  which  the  subscription  is  taken,  and 
that  if  they  desire  to  make  their  subscriptions  conditional,  it  must  be  so  ex- 


190  ASSESSMENTS   OR   CALLS.  §  55. 

*  6.  An  agreement  to  take  stock  and  pay  in  the  stock  of  a 
canal  company,  and  an  offer  of  the  canal  stock,  will  not  make 
the  party  liable  to  pay  money.14 

7.    Infancy  is  a  good  defence,  if  the  person  be  an  infant  at  the 

pressed  in  the  written  terms  of  subscription,  and  that  it  is  not  competent  to  de- 
liver a  written  contract,  as  an  escrow,  to  the  party  himself.  For,  to  admit  oral 
evidence  of  such  a  condition,  in  the  delivery  of  a  written  contract  to  the  party 
benefited  thereby,  is  a  practical  abandonment  of  the  rule  of  evidence,  that  such 
testimony  is  incompetent  to  control  a  written  contract. 

It  has  been  held,  that  it  is  not  competent  for  the"  commissioners  to  accept  the 
check  of  a  subscriber  in  payment  of  the  amount  required  by  the  charter  to  be 
paid  at  the  time  of  subscription,  but  that  specie,  or  its  equivalent,  must  be  de- 
manded. Crocker  v.  Crane,  21  Wend.  211  ;  s.  c.  2  Am.  Railw.  C.  484.  But  this 
is  at  variance  with  the  general  course  of  decision,  unless  in  regard  to  banks,  where 
the  charter  expressly  requires  the  payment  to  be  in  specie.  King  v.  Elliott,  5 
Sm.  &  M.  428. 

And  where  the  charter  of  a  railway  company  was  made  to  depend  upon  the 
condition  of  the  company  expending  $  50,000  in  two  years,  and  completing  the 
road  in  four  years  from  the  date  of  the  grant,  and  the  company  having  failed  in 
the  first  part  of  the  condition,  but  having  obtained  subscriptions  to  their  stock  to 
a  large  amount,  and  the  defendant  being  one  of  the  subscribers,  the  company 
having  organized,  and  chosen  directors,  the  defendant  being  one  of  them,  the 
legislature  revived  and  renewed  the  charter,  and  extended  the  time  for  the  per- 
formance of  such  condition ;  and  subsequently  to  this,  a  meeting  of  the  stock- 
holders was  called  by  the  commissioners,  in  which  the  defendant  took  part,  ad- 
ditional directors  being  appointed,  and  at  a  meeting  of  the  directors,  the  defend- 
ant being  present,  a  call  was  made  upon  the  subscriptions,  it  was  held  that  this 
amounted  to  an  acceptance  of  the  renewal  of  the  charter,  and  was  such  a  rec- 
ognition of  the  former  organization  of  the  company,  as  to  amount  to  a  sufficient 
organization  under  the  new  charter,  and  the  defendant  was  held  to  be  estopped 
by  his  conduct  from  denying  the  regularity  of  these  proceedings,  and  to  be  lia- 
ble to  pay  calls  on  his  stock.  Danbury  &  Norwalk  Railw.  v.  Wilson,  22  Conn. 
R. 435. 

Where  the  general  railway  law,  under  which  a  company  is  organized,  re- 
quires a  payment  of  ten  per  cent  upon  each  subscription  before  the  filing  of  the 
articles  of  association  with  the  secretary  of  state,  it  is  sufficient,  if  the  cash  pay- 
ments, by  whomsoever  made,  amount  in  the  aggregate  to  ten  per  cent,  upon 
$1,000  for  each  mile  of  the  road  proposed  to  be  constructed.  Lake  Ontario, 
A.  &  New  York  Railw.  v.  Mason,  16  N.  Y.  Court  of  Appeals,  451.  And  the 
subscription  to  stock  before  the  incorporation  of  the  company,  is  obligatory 
upon  the  company,  although  the  subscriber  make  no  cash  payment  whatever, 
the  right  of  membership  thereby  acquired  being  a  sufficient  consideration  for 
the  subscription.     lb. 

14  Swatara  Railw.  v.  Brune,  6  Gill,  41. 
*89 


§55.  DEFENCES   TO   ACTIONS   FOR   CALLS.  191 

time  of  suit  brought,  or  if  he  repudiate  the  subscription  within 
a  reasonable  time  after  coming  of  full  age.15  By  the  general 
provisions  of  the  English  statute,  all  persons  may  become  share- 
holders, there  being  no  exception,  in  terms,  in  favor  of  infants  ; 
and  if  one  be  registered  while  an  infant,  and  suffer  his  name  to 
remain  on  the  registry  after  he  becomes  of  full  age,  he  is  liable 
for  calls,  whether  made  while  he  was  an  infant,  or  afterwards.16 

16  North  W.  Raihv.  v.  MeMichael,  5  Exch.  114;  Birkenhead  Railw.  v.  Pit- 
cher, 5  Exch.  121  ;  s.  c.  6  Railw.  C.  622.  The  party  should  also  deny  hav- 
ing derived  any  advantage  from  the  shares,  or  offer  to  restore  them.  N.  W. 
Railw.  v.  MeMichael,  5  Exch.  114;  Leeds  &  T.  Railw.  v.  Fearnley,  4  Exch. 
26;  Dublin  &  W.  Railw.  v.  Black,  16  Eng.  L.  &  Eq.  556;  s.  c.  8  Exch.  181. 
See  also  Deposit  &  G.  Life  Assur.  Co.  v.  Ayscough,  6  E.  &  B.  761. 

10  Cork  &  Bandon  Railw.  v.  Cazenove,  10  Q.  B.  935.  But  it  would  seem 
that  infants  are  not  comprehended,  by  the  general  terms  of  the  English  statute. 
Birkenhead  &c.  Railw.  v.  Pilcher,  supra. 

It  has  been  said  that  an  infant  shareholder,  or  subscriber,  in  a  railway  com- 
pany, is  in  the  same  situation  as  in  regard  to  real  estate,  or  any  other  valuable 
property,  which  he  may  have  purchased  and  received  a  conveyance  of.  If, 
upon  coming  of  age,  he  disclaim  the  contract,  and  restore  the  thing,  with  all  ad- 
vantages arising  from  it,  his  liability  is  terminated,  and  he  cannot  be  made  lia- 
ble for  calls.  Parke,  B.,  in  Birkenhead  &  C.  Railw.  v.  Pilcher,  6  Railw.  C. 
625.  The  infant  is  not  regarded  as  merely  assuming  an  executory  undertaking, 
which  is  void  on  the  face  of  it,  but  in  the  nature  of  a  purchaser  of  what  is  pre- 
sumed to  be  valuable  to  him. 

Where,  therefore,  there  is  nothing  but  the  simple  fact  of  infancy  pleaded  to 
an  action  for  calls,  it  is  insufficient.  lb.  It  would  seem  that  the  plea  should 
contain  averments,  showing  the  disadvantageous  nature  of  the  contract  to  the 
infant,  his  repudiation  of  the  contract,  and  restitution  of  all  benefits  decreed 
under  it,  on  coming  of  full  age,  or  that  he  is  still  an  infant,  and  is  ready  to  do 
so,  upon  coming  of  full  age.  MeMichael  v.  London  &  N.  W.  Railw.,  6  Railw. 
C.  618;  Birkenhead  &  C.  Railw.  v.  Pilcher,  6  Railw.  C.  564,  662.  The  mere 
plea  of  infancy  is  an  immaterial  plea,  and  issue  being  joined  thereon,  and 
found  for  defendant,  the  plaintiff  is  still  entitled  to  judgment  veredicto  non  ob- 
stante,    lb. 

The  plea  must  show  that  the  infant  avoids  the  contract  of  subscription,  on  his 
coming  of  full  age.  Leeds  and  Thirsk  Railw.  v.  Fearnley,  5  Railw.  C.  644  ;  s.  c. 
4  Exch.  26.  And  the  appearance  by  attorney  is  not  equivalent  to  an  averment 
that  the  defendant  is  of  full  age.     lb. 

But  where  the  plea  alleged,  that  the  defendant  became  the  holder  of  shares, 
by  reason  of  his  having  contracted  and  subscribed  for  them,  and  not  otherwise ; 
and  that  at  the  time  of  his  so  contracting  or  subscribing,  and  also  at  the  time  of 
making  the  calls,  he  was  an  infant ;  and  that  while  he  was  an  infant  he  repudi- 
ated the  contract  and  subscription,  and  gave  notice  to  the  plaintiffs  that  he  held 


192  ASSESSMENTS   OR   CALLS.  §  55. 

It  seems  to  be  *  doubted  by  the  English  courts  whether  the  stat- 
ute of  limitations  as  to  simple  contracts  applies  to  an  action  for 
calls,  that  being  a  liability  imposed  by  statute,  and  so  to  be  re- 
garded as  a  specialty.17 

8.  Bankruptcy  is  a  good  defence  for  calls  made  after  the  cer- 
tificate of  bankruptcy  issues,  but  to  meet  liabilities  incurred 
before.18 

9.  One  of  the  commissioners  appointed  with  five  others  at  a 
given  place  to  take  subscriptions  to  a  railway,  has  no  right  in 
doing  so  to  give  any  assurance  as  to  the  line  of  location  that 
would  be  adopted  by  the  road.19 

10.  And  where  the  subscription  is  made  upon  condition  of  the 
road  going  in  a  particular  route,  the  plaintiff  may  show  that  the 
defendant  owned  land  upon  that  route.  And  any  representations 
of  the  agents  taking  the  subscriptions,  as  to  the  ultimate  value  of 
the  stock,  will  be  regarded  as  matters  of  opinion  merely  upon 
which  the  subscriber  had  no  right  to  rely.20 

the  shares  at  their  disposal ;  it  was  held  a  good  prima  facie  bar  ;  and  that  if  the 
defendant,  after  he  came  of  full  age,  disaffirmed  his  repudiation,  or  if  he  become 
liable,  by  enjoyment  of  the  profits,  those  facts  should  be  replied.  Newry  &  En- 
niskillen  Railw.  v.  Coombe,  3  Exch.  565 ;  s.  c.  5  Railw.  C.  633. 

Where  shares  were  sold  to  an  infant,  and  were  duly  transferred  to  him,  on 
the  declaration  of  the  vendor  that  he  was  of  full  age,  and  the  father  of  such 
infant,  by  a  deed,  reciting  that  he  had  purchased  on  behalf  of  the  son,  and  cove- 
nanting that  he,  on  coming  of  age,  would  execute  the  deed,  and  pay  all  calls, 
and  that  the  father  would  indemnify  the  company  against  all  costs,  by  reason  of 
the  son  being  an  infant,  it  was  held  that  the  father  was  a  contributory.  Ex 
parte  Reaveley,  1  De  G.  &  S.  550.  See  also  Stikeman  v.  Dawson,  4  Railw.  C. 
585 ;  s.  c.  1  Deg.  &  S.  90. 

17  Cork  &  B.  Railw.  v.  Goode,  24  Eng.  L.  &  Eq.  245. 

18  Chappie's  case,  17  Eng.  L.  &  Eq.  516 ;  s.  c.  5  De  G.  &  Sm.  400. 

19  North  Carolina  Railw.  v.  Leach,  4  Jones  Law,  340. 

20  Vawter  v.  Ohio  &  Miss.  R.  Co.,  14  Ind.  R.  174. 

*90 


§  56.  FUNDAMENTAL   ALTERATION   OF   CHARTER.  193 

♦SECTION    X. 
Fundamental  alteration  of  Charter. 


1.  Will  release  the  subscribers  to  stock. 

2.  Railway  company  cannot  purchase  steam- 

boats. 

3.  7.  Majority  may  bind  company  to  altera- 

tions, not  fundamental. 

4.  Directors  cannot  use  the  funds  for  purposes 

foreign  to  the  organization. 

5.  9.  But  where  the  legislature  or  the  directors 

make  legal  alterations  in  the  charter,  or 
the  location  of  the  road,  it  will  not  re- 
lease subscribers. 

6.  But  if  subscriptions  are  made  upon  con- 


8,  9.  Consideration  of  subscription,  being 
location  of  road,  must  be  substantially 
performed. 

10.  Express  conditions  must  be  performed. 

1 1 .  How  far  alterations  may  be  made  without 
releasing  subscribers. 

12.  It  may  be  done  where  such  power  is  re- 
served in  the  charter. 

13.  Personal  representative  liable  to  same  ex- 
tent as  subscriber. 

14.  Money  subscriptions  not  released  by  sub- 
sequent ones  in  land. 

dition  of  a  particular  location,  it  must  j  15.    Corporation  cannot  emigrate  into  another 
be  complied  with.  state  even  by  legislative  permission. 


§  56.  1.  There  can  be  no  doubt,  that  subscribers  to  the  stock 
of  a  railway  company  are  released  from  their  obligation  to  pay 
calls  by  a  fundamental  alteration  of  the  charter.  This  is  so  un- 
deniable, and  so  familiar  a  principle,  in  the  general  law  of  part- 
nership, as  not  to  require  confirmation  here.  We  shall  briefly 
advert  to  the  points  decided  in  some  of  the  more  prominent 
cases,  in  regard  to  incorporated  companies.  The  general  doc- 
trine applicable  to  the  subject  is  very  perspicuously  stated  by 
Woodbury,  J.,  in  an  early  case  in  New  Hampshire.1  "  Every 
owner  of  shares  expects,  and  stipulates,  with  the  other  owners, 
as  a  corporate  body,  to  pay  them  his  proportion  of  the  expenses, 
which  a  majority  may  please  to  incur,  in  the  prosecution  of  the 
particular  objects  of  the  corporation.  To  make  a  valid  change 
in  this  special  contract,  as  in  any  other,  the  consent  of  both  par- 
ties is  indispensable." 

2.   In  an  important  case 2  where  it  appeared  that  after  calls  fell 

1  Union  Locks  &  Canal  Co.  v.  Towne,  1  N.  Harnp.  K.  44.  But  where  the  origi- 
nal charter  or  preliminary  contract  provides  for  modifications,  the  subscribers 
are  still  bound  by  all  such  as  come  fairly  within  the  power.  Cork  &  Youghal 
Railroad  v.  Patterson,  37  Eng.  L.  &  Eq.  398;  post,  §  254,  n.  6;  Nixon  v. 
Brownlow,  30  Law  Times,  74.     s.  c.  3  H.  &  N.  686. 

2  Hartford  &  New  Haven  Railw.  v.  Croswell,  5  Hill,  383.  In  Winter  v.  Mus- 
cogee Railw.,  11  Ga.  R.  438,  the  charter  was  so  altered  as  to  allow  the  road 

VOL.  i.  13  *91 


194  ASSESSMENTS   OR   CALLS.  §  56. 

due,  but  before  suit  brought,  the  company,  being  incorporated 
for  the  purpose  of  building  a  railway,  procured  an  additional 
special  *  act,  by  which  they  were  authorized  to  purchase  steam- 
boats :  it  was  held,  that  a  subscriber,  not  having  assented  to  the 
alteration,  was  absolved  from  his  obligation  to  pay  calls. 

3.  In  a  very  elaborate  opinion  of  Bennett,  Chancellor,3  upon 
this  subject,  the  following  propositions  are  established  :  — 

to  stop  short  of  its  original  terminus  and  pass  in  a  different  route,  and  subscrib- 
ers to  the  stock  were  held  thereby  released,  unless  they  assented  to  the  altera- 
tion. But  where  one  gave  his  note  for  the  first  instalment,  and  his  stock  was 
forfeited,  for  non-payment  of  calls,  he  is  not  relieved  from  payment  of  his  note  by 
a  material  alteration  of  the  charter.  Mitchell  v.  Eome  Railw.,  17  Ga.  R.  574. 
But  any  modification  of  the  charter  which  affects  merely  the  detail  of  proceedings 
in  making  and  enforcing  calls  will  not  release  subscribers  to  the  stock,  when 
such  modification  has  been  accepted  by  the  corporation.  Illinois  River  Railw. 
Co.  v.  Beers,  27  Rlinois  R.  185. 

3  Stevens  v.  Rutland  &  Burlington  Railw.,  29  Vt.  R.  545.  The  opin- 
ion at  length  is  a  valuable  commentary  upon  this  important  subject.  In  this 
opinion  the  learned  chancellor  maintains,  — 

1.  That  by  the  implied  contract,  among  the  proprietors  of  all  joint-stock  un- 
dertakings, there  is  a  tacit  inhibition  against  applying  the  funds,  for  any  purpose 
beside  the  general  scope  of  the  original  enterprise,  and  that  this  applies  to  cor- 
porations, equally  with  commei'cial  partnerships.  Natusch  v.  Irving,  Gow  on 
Part.  App.  567.  And  that  courts  of  equity  will  restrain  a  corporation  from  thus 
misapplying  its  funds  by  injunction.  Ware  v.  Grand  Junction  "Water  Co.,  2  Rus- 
sell &  Mylne,  461.  And  that  this  will  be  done  upon  the  application  of  those 
shareholders  who  dissent.  And  in  some  instances  will  restrain  the  company 
from  applying  to  the  legislature  for  an  enlargement  of  their  powers.  Cunliff  v. 
Manchester  &  Bolton  Canal  Co.,  13  Eng.  Cond.  Ch.  131  ;  s.  c.  2  Russell  &  My. 
470,  475  ;  Livingston  v.  Lynch,  4  Johns.  Ch.  573. 

2.  That  if  the  proposed  alteration  is  only  auxiliary  to  the  main  design  of  the 
original  organization,  it  will  not  be  enjoined  ;  but  if  it  be  fundamental,  it  will 
be.  That  a  variation  in  the  course  of  a  turnpike-road  has  been  regarded  as  a 
fundamental  alteration  in  the  charter,  Middlesex  Turnpike  Co.  v.  Lock,  8  Mass. 
R.  268,  and,  as  such,  to  exonerate  subscribers  to  the  stock  of  the  original  com- 
pany. [But  Irvine  v.  The  Trunpike  Co.,  2  Penn.  R.  466,  holds  it  will  not  have 
that  effect.]  And  that  in  such  cases  it  will  make  no  difference,  that  the  sub- 
scriber was  a  director  in  the  company,  and  joined  in  the  petition  to  the  legisla- 
ture for  the  alteration.  Same  v.  Swann,  10  Mass.  R.  384  ;  Same  v.  Walker,  10 
Mass.  R.  390. 

The  learned  chancellor  regarded  the  case  of  Revere  v.  The  Boston  Copper 

Co.,  which  was  cited,  by  the  counsel  for  the  defendants,  as  making  rather  against 

his  purpose.     15  Pick.  351,363.     The  case  of  Hartford  &  New  Haven  Railw. 

v.  Croswell,  5  Hill,  383,  385,  is  relied  upon,  as  having  defined  a  fundamental 

*92 


§  56.  FUNDAMENTAL   ALTERATION   OF   CHARTER.  195 

*  1.  That  a  majority  of  a  joint-stock  company  cannot  use  the 
joint  property  except  within  the  legitimate  scope  of  their  charter, 

alteration  of  the  charter  of  a  corporationin,  the  language  of  Ch.  J.  Nelson,  to  be 
one  "  by  which  a  new  and  different  business  is  superadded  to  that  originally 
contemplated." 

3.  No  one  can  be  made  a  member  of  a  joint-stock  corporation  without  his  con- 
sent. Ellis  v.  Marshall,  2  Mass.  R.  2G9  ;  nor  can  he  be  compelled  to  remain  a 
member  of  such  company  after  its  fundamental  organization  is  altered  by  act  of 
the  legislature.  But  an  act  of  the  legislature  allowing  a  navigation  company  to 
raise  their  dam  above  the  poiht  of  the  original  charter  limit,  is  in  furtherance  of 
the  original  grant,  and  will  not  exonerate  the  subscribers.  Gray  v.  Mononga- 
hela  Navigation  Co.,  2  Watts  &  Serg.  156.  And  an  alteration  in  the  number  of 
votes,  to  be  cast  by  stockholders,  if  it  impair  the  obligation  of  the  contract  re- 
sulting from  the  grant,  is  void,  and  so  cannot  release  the  subscribers.  Osborn 
v.  Bank  of  United  States,  9  Wheat.  738.  But  any  statute  which  has  the  force 
to  effect  an  alteration  in  the  structure  of  the  corporation,  will  release  subscribers. 
Indiana  &  Ebensburg  Tump.  Co.  v.  Phillips,  2  Penn.  R.  184. 

4.  That  statutes  extending  the  term  of  a  corporation,  for  closing  up  its  busi- 
ness, on  petition  of  the  directors,  have  no  proper  bearing  upon  the  question. 
Lincoln  &  K.  Bank  v.  Richardson,  1  Greenl.  79;  Foster  v.  The  Essex  Bank,  16 
Mass.  R.  245. 

5.  That  it  is  no  fatal  objection  to  the  application  that  it  is  made  at  the  insti- 
gation of  a  rival  enterprise.  Coleman  v.  Eastern  Counties  Railw.,  10  Beavan, 
1.  [But  see  ante,  §  20.] 

6.  That  an  existing  railway  company  will  be  restrained  in  equity  from  apply- 
ing its  present  funds  to  extend  their  line,  or  improve  the  navigation  of  a  river 
connected  with  their  line,  or  for  obtaining  an  act  of  the  legislature,  authorizing 
them  to  do  so.  Hunt  v.  Shrewsbury  &  Chester  Railw.,  3  Eng.  L.  &  Eq.  144 ; 
Coleman  v.  Eastern  Co.'s  Railw.,  10  Beavan,  1. 

7.  That  members  of  an  existing  company  cannot  be  compelled  to  surrender 
their  interest  to  the  company,  or  to  others,  and  retire,  in  order  to  enable  them 
to  change  the  character  of  the  enterprise.  Lord  Eldon,  Chancellor,  in  Natusch 
v.  Irving,  supra. 

8.  In  favor  of  the  importance  and  necessity  of  having  this  constant  super- 
vision exercised  over  joint-stock  companies,  in  order  to  keep  them  within  the 
range  of  their  legitimate  functions,  the  learned  chancellor  thus  concludes :  — 

"  Where  it  is  clearly  shown  that  a  corporation  is  about  to  exceed  its  powers, 
and  to  apply  their  funds  or  credit  to  some  object  beyond  their  authority,  it 
would,  if  the  purpose  of  the  corporation  was  carried  out,  constitute  a  breach  of 
trust ;  a  court  of  equity  cannot  refuse  to  give  relief  by  injunction.  Agar  v.  The 
Regent's  Canal  Co.,  Cooper's  Eq.  77  ;  The  River  Dun  Navigation  Co.  v.  North 
Midland  Railw.  Co.,  1  Railw.  C.  153,  154.  The  last  case  was  before  the  Lord 
Chancellor,  and  he  uses  this  language  :  '  If  these  companies  go  beyond  the  pow- 
ers which  the  legislature  has  given  them,  and,  in  a  mistaken  exercise  of  those 

*93 


19G  ASSESSMENTS   OR   CALLS.  §  56. 

*  and  if  they  attempt  to  do  so  equity  will  restrain  them.  2.  The 
shareholders  are  bound  by  such  modifications  of  the  charter  as 
are  not  fundamental,  but  merely  auxiliary  to  the  main  design. 
3.  If  a  majority  of  a  railway  company  obtain  an  alteration  of 
their  charter,  which  is  fundamental,  as  to  enable  them  to  build 
an  extension  of  their  road,  any  shareholder  who  has  not  assented 

powers,  interfere  with  the  property  of  individuals,  this  court  is  bound  to  inter- 
fere ;  and  that  was  Lord  Eldon's  ground  in  Agar  v.  The  Regent's  Canal  Co.' 
The  lord  chancellor  further  adds  :  '  I  am  not  at  liberty  (even  if  I  were  in  the 
least  disposed,  which  I  am  not)  to  withhold  the  jurisdiction  of  this  court,  as  ex- 
ercised in  the  case  of  Agar  v.  The  Regent's  Canal  Co.'  In  that  case  Lord  Eldon 
proceeded  simply  on  the  ground  that  it  was  necessary  to  exercise  this  jurisdic- 
tion of  chancery,  for  the  purpose  of  keeping  these  companies  within  the  powers 
which  the  acts  give  them.  And  it  is  added  :  '  And  a  most  wholesome  exercise 
of  the  jurisdiction  it  is  ;  because,  great  as  the  powers  necessarily  are,  to  enable 
the  companies  to  carry  into  effect  works  of  this  magnitude,  it  would  be  most 
prejudicial  to  the  interests  of  all  persons  with  whose  property  they  interfere,  if 
there  was  not  a  jurisdiction  continually  open,  and  ready  to  exercise  its  power  to 
keep  them  within  their  legitimate  limits.' 

"The  injunction  must,  therefore,  be  allowed ;  but  only  so  far  as  to  restrain 
the  defendants,  until  the  further  order  of  the  chancellor,  from  applying  the  pres- 
ent funds  of  the  corporation,  or  their  income  from  their  present  road,  either  di- 
rectly or  indirectly,  to  the  purpose  of  building  said  extension  in  said  road,  or  to 
pay  land  damages  and  other  expenses  which  may  be  contingent  upon  the  build- 
ino1  of  it ;  and  also  from  using  or  pledging,  directly  or  indirectly,  the  credit  of 
the  corporation  in  effecting  the  object  of  the  extension  ;  and  at  the  same  time, 
the  company  will  be  left  at  liberty  to  build  the  extension  with  any  new  funds 
which  they  may  see  fit  to  obtain  for  that  specific  object."  See  also  Gifford  v. 
New  Jersey  Railw.,  2  Stockton's  Ch.  171,  where  this  subject  is  examined  some- 
what at  length  by  the  chancellor,  and  the  conclusion  arrived  at,  that  it  is  com- 
petent for  a  court  «f  equity  to  interfere  in  the  management  and  application  of 
the  funds  of  a  corporation,  at  the  instance  of  a  single  stockholder  ;  that  the  leg- 
islature may  give  additional  power  from  time  to  time  to  corporations,  and  that 
such  acts  are  binding,  unless  they  conflict  with  vested  rights,  or  impair  the  ob- 
ligation of  contracts.  That  a  stockholder  in  an  existing  corporation  has  a  vest- 
ed rifht  in  any  exclusive  privilege  of  the  corporation  which  tends  to  enhance 
the  value  of  its  stock,  and  that  he  would  not  be  bound  by  any  act  of  the  legisla- 
ture tending  to  produce  such  effect,  without  his  consent ;  but  that  such  consent 
•will  be  inferred  from  long  acquiescence,  which  is  equivalent  to  express  consent. 
In  Scofield  v.  School  District,  27  Conn.  R.  499,  it  was  held  by  a  divided  court, 
that  one  inhabitant  of  a  school  district  might  obtain  an  injunction  against 
the  corporation  denying  them  the  power  to  use  their  school-house  for  the  pur- 
poses of  religious  meetings  and  Sunday  schools,  which  is  certainly  carrying  the 
doctrine  to  the  very  verge  of  absurdity.  Post,  §  174,  n.  7. 
*94 


§  56.  FUNDAMENTAL   ALTERATION   OF   CHARTER.  197 

to  the  act,  may  restrain  the  company,  by  injunction,  from  apply- 
ing the  funds  of  the  original  organization  to  the  extension. 

4.  In  a  late  case  before  the  Master  of  the  Rolls,4  it  was  held, 
that  directors  have  no  right  to  enter  into  or  to  pledge  the  funds 
of  the  company  in  support  of  any  project  not  pointed  out  by 
their  act,  although  such  project  may  tend  to  increase  the  traffic 
upon  the  railway,  and  may  be  assented  to  by  the  majority  of  the 
shareholders,  and  the  object  of  such  project  may  not  be  against 
public  policy.  And  that  acquiescence  by  shareholders  in  a  pro- 
ject for  ever  so  long  time,  affords  no  presumption  of  its  legality. 
And  in  a  late  case  in  this  country  it  is  held,  that  the  subscriber 
having  acted  as  director  of  the  corporation,  and  as  such  having 
participated  in  the  proceedings  to  effect  the  alteration,  will  not 
make  him  liable  for  calls,  upon  his  original  subscription.5 

5.  But  it  is  no  defence  to  an  action  for  calls,  that  the  directors 
have  altered  the  location  of  the  road,  if  by  the  charter  they  had 
the  discretion  to  do  so.6  And  if  the  charter  contain  a  provision 
that  the  legislature  may  alter  or  amend  the  same,  the  exercise  of 
this  power  will  not  absolve  the  shareholders  from  their  liability 
to  pay  calls.7     And  all  subscriptions  to  stocks,  and  all  contracts 

4  Colman  v.  Eastern  Counties  Raihv.,  4  Railw.  C.  513.  See  also  Munt  v. 
Shrewsbury  &  Chester  Railw.,  3  Eng.  L.  &  Eq.  144  ;  East  Anglian  Railw. 
v.  Eastern  Counties  Railw.,  7  Eng.  L.  &  Eq.  505  ;  MacGregor  v.  Deal  &  Dover 
Railw.,  16  Eng.  L.  &  Eq.  180;  Danbury  &  Norwalk  Railw.  v.  Wilson,  22 
Conn.  R.  435  ;  Mill-Dam  Co.  v.  Dane,  30  Maine,  R.  347  ;  post,  §  235  ;  Winter 
v.  Muscogee  Railw.,  11  Ga.  R.  438  ;  Hamilton  Plank  Road  v.  Rice,  7  Barb. 
157  ;  Commonwealth  v.  Cullen,  1  Harris,  133  ;  3  Woodbury  &  Minot,  105. 

5  Macedon  Plank  Road  Co.?;.  Lapham,  18  Barb.  312.  But  see  Greenville  & 
Columbia  Railw.  v.  Coleman,  5  Rich.  118. 

6  Colvin  v.  The  Turnpike  Co.,  2  Carter,  511 ;  Id.  656. 

Nor  is  it  a  defence  to  an  action  for  calls,  that  the  name  of  the  company,  or  the 
length  and  termini  of  the  road,  have  been  materially  altered.  Del.  &  Atlantic 
Railw.  v.  Irick,  3  Zab.  321. 

7  Northern  Railw.  v.  Miller,  10  Barb.  260;  Pacific  Railw.  v.  Renshaw,  18 
Missouri  R.  210.  And  where  a  subscription  is  made  to  the  capital  stock  of  a  rail- 
way, while  an  act  of  the  legislature  exists,  allowing  the  consolidation  of  such  com- 
pany with  another,  the  fact  that  such  consolidation  is  subsequently  made  affords 
no  ground  for  avoiding  the  subscription.  Bish  v.  Johnson,  21  Ind.  R.  299. 
And  if,  from  the  articles  of  association  of  the  company,  it  is  obvious  that  con- 
solidation with  another  company  was  one  of  the  leading  purposes  of  the  incor- 
poration, the  fact  of  such  consolidation,  after  the  date  of  a  subscription,  will  be 


198  ASSESSMENTS   OR   CALLS.  §  56. 

for  the  *  purchase  of  stock,  to  be  delivered  at  a  future  day,  must 
be  understood  to  be  made  subject  to  the  exercise  of  all  the  legal 
powers  of  the  directors  and  of  the  legislature,  and  an  illegal  ex- 
ercise of  power  by  either  will,  it  has  sometimes  been  said,  bind 
no  one,  and  should  exonerate  no  one  from  his  just  obligations.8 

6.  But  where  subscriptions  are  made  upon  the  express  con- 
dition that  the  road  shall  go  in  a  particular  place,  the  perform- 
ance of  such  condition  is  commonly  regarded  as  indispensable 
to  the  liability  of  the  subscribers,  the  same  as  in  other  contracts.9 
But  an  alteration  in  the  line  of  the  road,  which  does  not  affect 
the  interest  of  the  subscriber,  will  not  absolve  him  from  his  sub- 
scription.10 

And  when  the  subscription  was  made  upon  condition  that  the 
road  be  located  upon  a  given  line,  and  providing  that  such  loca- 

no  defence  against  its  enforcement,  even  when  the  statute  authorizing  the  consoli- 
dation is  subsequent  to  the  date  of  the  subscription.  Hanna  v.  Cin.  &  F.  W. 
Railw.,  20  Ind.  R.  30.  The  consolidation  of  two  corporations  does  not  effect  the 
dissolution  of  either,  so  as  to  work  the  abatement  of  pending  actions.  Baltimore 
&  Susq.  Railw.  v.  Musselman,  2  Grant  Cas.  348.  But  see  McMahan  v.  Morrison, 
16  Ind.  R.  172  contra.  For  many  purposes  the  liabilities  of  the  original  com- 
panies remain,  as  before  the  consolidation,  Central  Railw.  Co.  v.  Bunn,  3  Stockt. 
Ch.  336.  It  is  here  decided,  that  where  the  original  company  and  a  new  com- 
pany formed  by  the  mortgagees  after  sale  of  the  road  bear  the  same  name  and 
have  the  same  president,  a  suit  to  enforce  a  claim  contracted  before  the  sale, 
served  upon  the  president,  cannot  go  to  judgment  against  the  new  company,  nor 
will  a  court  of  equity  allow  a  general  judgment,  at  law,  to  be  taken.  The  plain- 
tiff must  elect  to  take  judgment,  in  terms,  against  the  original  company.  This 
seems  to  be  a  very  judicious  course,  but  one  for  which  courts  of  equity  will  afford 
no  precedent.  The  order  should  have  been  made,  most  obviously,  in  the  court 
of  law. 

8  Irvin  v.  Turnpike  Co.,  2  Penn.  R.  466  ;  Conn.  &  Pas.  Rivers  Railw.  v.  Bailey, 
24  Vt.  R.  479.  Faulkner  v.  Hebard,  26  Vt.  R.  452  ;  Fry's  Exr.  v.  Lex.  &  Big 
S.  Railw.,  2  Met.  (Ky.)  314. 

9  See  cases  under  notes  2  &  3,  supra ;  and  also  Railsback  v.  Liberty  &  Abing- 
ton  Turnp.  Co.,  2  Carter  (Ind.)  656.  And  in  Kenosha,  Rockford,  and  Rock 
Island  R.  Co.  v.  Marsh,  17  AViscons.  R.  13,  it  was  held,  that  where  the  legisla- 
ture had  the  general  power  to  repeal  or  alter  acts  of  incorporation,  and  accord- 
ingly allowed  an  existing  company,  chartered  to  carry  a  railway  over  a  given 
line,  and  whose  subscriptions  had  been  taken  with  that  view,  to  change  their 
route  very  essentially,  that  the  subscribers  were  thereby  released  from  their 
obligation  to  pay  calls. 

10  Banet  v.  Alton  &  Sangamon  Railw.,  13  HI.  R.  504;  Danbury  &  Norwalk 
Railw.  v.  Wilson,  22  Conn.  R.  435. 

*95 


§  56.  FUNDAMENTAL   ALTERATION   OF   CHARTER.  199 

tion  should  be  sufficiently  evinced  by  an  order  of  the  board  of 
directors  accepting  such  subscription  upon  the  condition  named, 
it  was  held  sufficient  to  bind  the  subscriber,  that  the  road  had 
been  in  fact  located  and  built  upon  the  line  designated,  and  that 
this  was  known  to  him,  although  there  had  been  no  formal  action 
of  the  board  accepting  the  subscription.11 

7.  And  an  alteration  in  the  charter,  which  consists  only  of  an 
increase  of  the  corporate  powers,  or  of  a  different  organization  of 
the  corporate  body,  leaving  it  with  lawful  power  to  execute,  what 
may  be  regarded  as  substantially  the  original  object  of  its  crea- 
tion, will  not  exonerate  subscribers  to  the  stock  of  the  company.12 
So  too  where  the  general  laws  of  the  state  provide  that  all  acts 
of  incorporation  may  be  altered,  amended,  or  repealed  by  the 
legislature,  it  is  no  defence  to  a  subscription  for  stock,  that 
subsequently  the  legislature  increased  the  liability  of  the  stock- 
holders.13 

8.  And  notwithstanding  much  apparent  conflict  in  the  cases, 
upon  this  subject,  it  will  be  found  to  be  the  general  result  of  the 
best  considered  cases,  that  the  alteration,  either  in  the  charter  of 
the  company,  or  the  line  of  the  road,  to  exonerate  the  subscriber 
for  stock,  must  be  one  which  removes  the  prevailing  motive  for 
the  subscription,  or  else  materially  and  fundamentally  alters  the 
responsibilities  and  duties  of  the  company,  and  in  a  manner  not 

11  Moore  v.  New  Albany  &  Salem  Railw.  Co.,  15  Ind.  R.  78. 

12  Pacific  Railw.  v.  Hughs,  22  Missouri  R.  291  ;  Peoria  &  Oquawka  Railw.  v. 
Elting,  17  111.  R.  429.  In  Everhart  v.  West  Chester  and  Philadelphia  Railw., 
28  Penn.  St.  339,  the  subscribers  for  stock  were  held  not  released  by  such  a 
change  in  the  charter  of  the  company  as  enabled  them  to  issue  preferred  stock, 
to  enable  them  to  raise  the  means  of  making  and  equipping  the  road  in  the  man- 
ner originally  contemplated.  It  was  considered  that  such  an  amendment  of  the 
charter  was  merely  ancillary  to  the  main  design,  and  might  be  accepted  by  a 
majority  of  the  stockholders  and  thus  become  binding  upon  all  ;  that  it  is  im- 
plied in  every  subscription  for  the  stock  in  a  railway  company,  that  they  may 
resort  to  the  ordinary  and  legal  means  for  accomplishing  the  object  proposed  by 
the  charter. 

It  is  here  said,  that  an  alteration  of  the  charter,  which  superadds  an  entirely 
new  enterprise,  will  release  subscriptions  to  the  stock.  See  also  Fry's  Exr.  v.  Lex 
&  Big.  S.  Railw.,  2  Met.  (Ky.)  314. 

13  South  Bay  Meadow  Dam  Co.  v.  Gray,  30  Maine  R.  547.  Buffalo  &  New 
Y.  City  Railw.  v.  Dudley,  4  Kernan,  336. 


200  ASSESSMENTS    OR    CALLS.  §  56. 

provided  for,  or  contemplated,  either  in  the  charter  itself  or  the 
general  laws  of  the  state.14 

*  9.  Where  a  town  or  city  stipulate  with  a  railway  company 
for  adequate  consideration  to  terminate  their  route,  at  a  point 
beneficial  to  such  town  or  city,  this  will  not  preclude  the  com- 
pany from  forming  connections  with  other  routes,  by  land  or 
water,  at  the  same  point.15 

10.  And  where  the  plaintiff  made  it  a  condition  of  his  sub- 
scription to  the  capital  stock  of  a  railway,  that  it  should  pass 
through  some  portion  of  the  counties  of  Monroe  and  Ontario,  and 
the  road  was  so  located  as  not  to  touch  either  of  those  counties, 
it  was  held,  that  he  was  released  from  his  subscription.16 

14  But  in  the  Greenville  &  Columbia  Railw.  v.  Coleman,  5  Rich.  118,  where 
the  charter  gave  the  stockholders  the  right  to  designate  the  route  they  preferred, 
and  if  any  stockholder  was  dissatisfied  with  the  route  selected,  the  right  to  with- 
draw his  subscription,  "  provided,  at  the  time  of  subscribing,  he  designated  the 
route  he  desires  to  be  selected,"  and  one  subscribed,  without  designating  the 
route  he  preferred,  under  an  assurance  from  one,  who  was  soliciting  subscrip- 
tions, that  he  might  pay  $  5  on  $  100,  and  be  free  from  liability  as  to  the  resi- 
due, it  was  held,  that  he  was  liable,  as  a  stockholder,  without  the  right  to  with- 
draw. But  some  of  the  American  cases  do  not  seem  to  recognize  any  alteration 
in  the  route  of  the  road,  even  one  which  renders  it  practically  a  different  enter- 
prise, as  a  defence  to  subscriptions  for  stock.  Central  Plank  Road  Co.  v. 
Clemens,  16  Mo.  R.  359.  But  in  Champion  v.  Memphis  &  Charleston  R.  Co., 
35  Miss.  R.  692,  it  was  decided,  that  when  the  route  on  which  a  railroad  is  to  be 
located  is  prescribed  by  its  charter,  a  subsequent  material  deviation  from  the  route 
therein  prescribed  will  release  the  stockholders  who  had  previously  subscribed, 
and  who  did  not  consent  to  the  deviation. 

It  is  not  every  deviation  in  the  location  of  a  railroad  from  the  route  prescribed 
in  the  charter  which  will  release  non-assenting  stockholders,  and  it  is  impracti- 
cable to  lay  down  any  general  rule  to  serve  as  a  guide  in  determining  the  ques- 
tion  of  the  materiality  of  the  deviation.  Each  case  must  be  determined  by  its 
own  particular  circumstances ;  and  hence,  where  a  stockholder  resists  the  col- 
lection of  his  subscription  for  stock,  upon  the  ground  of  a  deviation  from  the 
route  prescribed  by  the  charter,  he  ought  to  set  out  in  his  plea  such  deviation 
clearly  and  distinctly,  so  that  its  materiality  can  be  determined. 

A  plea  by  a  stockholder  in  a  railroad  company,  setting  up  a  deviation  from  the 
route  prescribed  by  the  charter  as  a  defence  to  a  suit,  to  enforce  his  subscription 
for  stock,  which  describes  the  deviation  as  follows  :  "  That  said  road  was  not  con- 
structed in  accordance  with  the  requirements  of  the  charter,"  is  bad  for  uncer- 
tainty. 

15  Baltimore  &  Ohio  Railw.  v.  Wheeling,  13  Grattan,  40. 

18  Buffalo,  Corning,  &  N.  Y.  Railw.  v.  Pottle,  23  Barb.   21.     And  where  a 
*96 


§  56.  FUNDAMENTAL   ALTERATION   OF   CHARTER.  201 

11.  Where  the  articles  of  incorporation  of  a  railway  company 
restrict  calls  upon  subscriptions  to  twenty  per  cent  in  one  year, 

party,  who  was  not  a  stockholder,  executed  a  promissory  note  to  a  railway  com- 
pany, promising  to  pay  them  $  200,  in  consideration  that  they  would  locate  their 
depot  in  block  94,  in  Indianapolis,  to  be  paid  when  the  company  should  commence 
the  construction  of  their  depot,  and  the  line  of  the  company's  road  extended  from 
Terre  Haute,  through  Indianapolis,  to  Richmond,  a  distance  of  150  miles,  at  the 
date  of  the  note,  but  by  subsequent  act  of  the  legislature,  was  divided,  at  Indian- 
apolis, and  the  portion  between  Indianapolis  and  Richmond,  being  about  one 
half,  was  given  to  another  company,  which  built  their  depot  in  another  portion 
of  Indianapolis,  the  former  company  only  constructing  a  freight  depot,  on  block 
94,  it  was 

Held,  that  by  the  alteration  of  the  charter  of  the  Terre  Haute  and  Richmond 
Railway  Company,  and  the  acceptance  thereof  by  the  company,  the  company 
became  substantially  a  different  corporation,  and  were  unable  to  perform  the 
condition  upon  which  the  note  was  to  become  payable,  and  that  the  circum- 
stance, that  the  depot  located  on  block  94  was  of  some  advantage  to  the  plain- 
tiff in  error,  was  of  no  importance. 

But  an  amalgamation  of  two  railway  companies,  effected  subsequent  to  the 
date  of  a  subscription  to  the  stock  of  one  of  them,  but  which  had  been  author- 
ized by  an  act  of  the  legislature  prior  to  that  time,  will  not  release  the  subscrip- 
tion. And  it  is  of  no  importance,  that  the  consolidation  took  place  without  the 
knowledge  of  the  subscriber.  Sparrow  v.  Evansville  &  Crawfordsville  Railway, 
7  Porter  (Ind.),  369. 

The  subscription  of  stock  to  an  amalgamated  company  is  a  sufficient  consent 
to  the  amalgamation.  And  such  consent  by  the  stockholders  seems  to  be*  re- 
garded as  requisite  to  the  power  of  the  legislature  to  amalgamate  existing  rail- 
way companies.  Fisher  v.  Evansville  &  Crawfordsville  Railway,  7  Porter  (Ind.), 
407.  Where  one  of  the  stockholders  of  a  railway  company  agreed  with  the 
company  to  subscribe  and  take  a  given  number  of  shares  in  the  capital  stock,  if 
the  company  would  adopt  a  particular  route,  there  being  two  under  considera- 
tion, and  the  company  in  consequence  adopted  that  route,  it  was  held  that  the 
party  was  bound  by  his  contract  to  take  and  pay  for  the  number  of  shares  he 
had  thus  agreed  to  subscribe.  Spartanburgh  &  Union  Railw.  v.  De  Graffenreid, 
12  Rich.  675.  But  where  in  such  a  case,  by  a  subsequent  amendment  of  the 
charter,  the  route  in  consideration  of  which  the  subscription  was  made  was 
abandoned,  and  another  adopted,  the  subscriptions  were  held  to  be  thereby 
avoided.  Hester  v.  Memphis  &  Charleston  Railw.,  32  Miss.  R.  378.  But  one 
who  makes  an  absolute  subscription  to  a  railway,  cannot  avoid  it  by  proving 
a  parol  condition  upon  which  it  was  made,  not  complied  with,  unless  he  show 
that  fraud  also  existed  in  the  contract.  North  Carolina  Railw.  v.  Leach,  4  Jones 
Law,  340.  One  of  the  commissioners,  there  being  five,  has  no  power  to  give  any 
binding  assurance  as  to  the  location.    lb. 

If  the  party  have  any  remedy  in  such  case  by  mandamus  or  injunction,  where 
the  directors  locate  the  road  differently  from  the  requirements  of  the  charter,  and 
omit  to  resort  to  it  at  once,  he  is  bound  by  such  acquiescence.    lb. 


202  ASSESSMENTS   OR   CALLS.  §  56. 

and  ten  per  cent  at  one  time,  and  also  provide  that  said  articles 
may  at  any  time  be  changed  by  the  unanimous  consent  of  the 
board  of  directors,  it  is  competent  for  the  board  to  so  change  the 
mode  of  making  calls,  as  to  require  them  to  be  made  not  exceed- 
ing five  per  cent  a  month,  and  such  change  in  the  articles  as  to 
the  mode  of  making  calls  will  be  binding  upon  previous  subscrip- 
tions.17 

12.  And  in  a  somewhat  recent  case  18  it  was  held,  where 
the  legislature  had  reserved,  in  the  charter  of  a  corporation,  the 
power  to  modify  or  repeal  the  same,  that  members  of  the  corpo- 
ration hold  their  shares  subject  to  such  liability  as  may  attach 
in  consequence  of  the  extension  or  renewal  of  the  charter, 
although  obtained  without  their  consent. 

13.  And  it  was  also  here  considered,  that  the  estate  of  an  in- 
testate shareholder  suceeded  to  the  personal  responsibility  of  the 
deceased  in  the  corporation,  and  this  will  render  the  adminis- 
trator liable  for  the  debts  of  the  corporation  contracted  after  the 
decease  of  the  intestate,  to  the  same  extent  the  deceased  would 
have  been  if  still  living  ;  and  that  the  stockholder  or  his  personal 
representative  can  only  relieve  himself  from  responsibility  by  a 
bond  fide  and  absolute  sale  of  the  stock. 

14.  A  railway  company  do  not  release  money-subscriptions 
by  accepting  large  land-subscriptions  at  a  subsequent  date.19 

15.  And  a  railway  corporation,  chartered  in  one  state  to  con- 
struct and  operate  a  road  within  that  state,  cannot  emigrate 
into  another  state,  even  where  that  state  had  given  legislative 
permission  to  act  therein.  And  after  having  transferred  its 
business  office  into  another  state,  where  it  performed  all  its  cor- 
porate functions,  it  is  not  competent  for  it  to  make  valid  calls  in 
such  other  state  upon  subscriptions  taken  in  the  place  of  its 
creation.20 

17  Burlington  &  Mo.  River  R.  Co.  v.  White,  5  Clarke,  409. 

18  Bailey  v.  Hollister,  26  N.  Y.  R.  112.  But  it  is  here  suggested,  that  after  the 
charter  of  a  corporation  has  expired,  there  is  no  power  to  revive  it,  by  any 
agency  less  than  the  consent  of  all  the  corporators. 

19  Hornaday  v.  Ind.  &  111.  Central  Railw.,  9  Ind.  R.  263. 
30  Aspinwall  v.  Ohio  &  Mississippi  R.  Co.,  20  Ind.  R.  492. 


§57. 


SUBSCRIPTIONS   BEFORE   DATE   OF   CHARTER. 


203 


♦SECTION    XI. 


Subscriptions  before  date  of  Charter. 


1 .  Subscriptions  before  date  of  charter  good. 

2.  Subscriptions  upon  condition  not  performed. 
n.  4.    Where  the  condition  is  performed. 

3.  Subscription  by  a  stranger  to  induce  com- 

pany to  build  station. 

4.  Subscription  on  condition,  an  offer  merely. 


5.  Conditional  subscription  takes  effect  upon 
performance  of  the  condition. 

G.  How  far  cotnmissiouers  may  annex  con- 
ditions to  subscription. 

7.  Such  conditions  void,  if  fraudulent  as  to 
company. 


§  57.  1.  It  has  been  held  that  one  who  subscribes  before  the 
act  of  incorporation  is  obtained,  and,  by  parity  of  reason,  before 
the  organization  of  the  company,  although  after  the  act  of  incor- 
poration, is  holden  to  the  corporation,  to  pay  the  amount  of  his 
subscription.  .  And  a  suit  is  sustainable,  in  their  name,  upon 
any  securities  given  in  the  name  of  the  association,  or  of  the 
commissioners  for  organizing  the  company,  and  equally  upon 
the  subscription  itself  in  the  name  of  the  corporation.1  And  it 
is  not  competent  for  one,  who  is  a  subscriber  to  such  an  enter- 
prise, to  withdraw  his  name  while  the  act  of  incorporation  is 
going  through  the  legislature.2 

2.  But  an  informal  subscription,  which  is  never  carried 
through  the  steps  necessary  to  constitute  the  subscribers  mem- 
bers of  the  company,  has  been  held  inoperative,  as  no   compli- 

1  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  Exch.  R.  93  ;  Selma  &  Tenn.  Railw. 
Co.  v.  Tipton,  5  Alabama  R.  786 ;  Vermont  Central  Railw.  Co.  v.  Clayes,  21 
Vt.  R.  30 ;  Delaware  and  Atlantic  Railw.  v.  Iriek,  3  Zab.  321. 

In  the  last  case  the  very  point  ruled,  is,  whether  the  company  were  proper 
plaintiffs,  in  an  action  to  enforce  calls  against  one  who  signed  the  commissioners' 
paper  for  shares  before  the  organization.  Held,  the  commissioners  were  to  be 
regarded  as  agents  of  the  company.  See  also  Troy  and  Boston  Railw.  v.  Tib- 
bits,  18  Barb.  297;  Stanton  v.  Wilson,  2  Hill,  153;  Troy  &  Boston  Railw.  v. 
Warren,  18  Barb.  310  ;  Hamilton  Plank  Road  Co.  v.  Rice,  7  Barb.  157  ;  Stewart 
v.  Hamilton  College,  2  Denio,  417  ;  Danbury  &  N.  Railw.  v.  Wilson,  22  Conn.  R. 
435.  So  also  a  subscription  to  the  capital  stock  of  a  railway,  made  on  the  solici- 
tation of  one  who  was  not  a  commissioner,  but  who  felt  an  interest  in  the  road, 
and  volunteered  to  take  up  subscriptions  to  its  stock,  was  held  valid  in  a  very 
recent  case.     Railroad  Company  v.  Rodrigues,  10  Rich.  (S.  C.)  278. 

2  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  Exch.  93 ;  Brownlee  v.  Ohio,  Ind.  & 
111.  Railw.  Co.,  18  Ind.  R.  68. 

*97 


204  ASSESSMENTS   OR   CALLS.  §  57. 

ance  with  the  act.3  And  a  subscription,  upon  condition  that 
the  road  is  built  through  certain  specified  localities,  the  company 
at  the  time  not  assuming  to  build  the  road  through  those  places, 
will  not,  it  has  been  held,  make  the  subscriber  liable  to  an  action 
for  calls,  even  if  the  condition  be  ultimately  performed  by  the 
company.4      But   one    *  might    perhaps    raise    some    question, 

'  Troy  &  Boston  Railw.  v.  Tibbits,  18  Barb.  298. 

*  Macedon  &  Bristol  Plank  E.  v.  Laphani,  18  Barb.  313.  In  this  case  it 
seems  to  have  been  decided  that  such  a  subscription  is  not  good,  as  a  subscription 
for  stock,  not  upon  the  ground  mainly  that  it  was  conditional  and  so  against  pub- 
lic policy,  or  from  want  of  mutuality,  but  upon  the  ground  of  an  extension  of 
the  road  and  an  increase  of  the  capital  stock.  But  see  also  Utica  &  Sch.  Bailw. 
v.  Brinckerhoff,  21  Wend.  139,  where  such  a  decision  is  made.  But  the  cur- 
rent of  authority,  both  English  and  American,  is  almost  exclusively  in  a  counter 
direction.  It  is  impossible,  upon  any  fair  ground  of  construction,  to  consider  such 
a  subscription,  where  the  road  is  located  in  a  given  line,  in  faith,  and  in  fulfilment 
of  the  condition,  as  a  mere  offer,  unaccepted.  It  is  a  proffer,  a  proposal,  accepted, 
and  as  much  binding  as  any  other  possible  consideration.  But  if  it  were  to  be 
regarded  as  a  mere  offer,  standing  open,  upon  every  principle  of  reason  and  law, 
when  accepted,  according  to  its  terms,  it  is  binding  as  a  contract  and  no  longer 
revocable,  and  the  only  case,  of  much  weight,  which  ever  attempted  to  maintain 
the  opposite  view,  that  of  Cooke  v.  Oxley,  3  T.  R.  653,  has  been  regarded  as 
overruled  upon  that  point  for  many  years.  See  L'Amoreux  v.  Gould,  3  Sel- 
den,  349  ;  Conn.  &  Passumpsic  Rivers  Railw.  v.  Bailey,  24  Vt.  R.  478. 

In  the  case  of  Boston  &  Maine  Railw.  v.  Bartlett,  3  Cush.  224,  the  subject 
is  very  justly  illustrated  by  Mr.  Justice  Fletcher :  "  In  the  present  case,  though 
the  writing  signed  by  the  defendants  was  but  an  offer,  and  an  offer  which  might 
be  revoked,  yet,  while  it  remained  in  force  and  unrevoked,  it  was  a  continuing 
offer  during  the  time  limited  for  acceptance  ;  and,  during  the  whole  of  that  time, 
it  was  an  offer  every  instant,  but  as  soon  as  it  was  accepted  it  ceased  to  be  an 
offer  merely,  and  then  ripened  into  a  contract.  The  counsel  for  the  defendants 
is  most  surely  in  the  right,  in  saying  that  the  writing  when  made  was  without 
consideration,  and  did  not,  therefore,  form  a  contract.  It  was  then  but  an  offer 
to  contract ;  and  the  parties  making  the  offer  most  undoubtedly  might  have  with- 
drawn it  at  any  time  before  acceptance. 

"  But  when  the  offer  was  accepted,  the  minds  of  the  parties  met,  and  the  con- 
tract was  complete.  There  was  then  the  meeting  of  the  minds  of  the  parties, 
which  constitutes  and  is  the  definition  of  a  contract.  The  acceptance  by  the 
plaintiffs  constituted  a  sufficient  legal  consideration  for  the  engagement  on  the 
part  of  the  defendants.  There  was  then  nothing  wanting  in  order  to  perfect  a 
valid  contract  on  the  part  of  the  defendants.  It  was  precisely  as  if  the  parties 
had  met  at  the  time  of  the  acceptance,  and  the  offer  had  then  been  made  and 
accepted,  and  the  bargain  completed  at  once. 

"  A  different  doctrine,  however,  prevails  in  France,  and  Scotland,  and  IIol- 
*98 


§  57.  SUBSCRIPTIONS   BEFORE   DATE   OF   CHARTER.  205 

whether,  upon  general  principles,  such  a  subscription  ought  not 
to  be  binding,  as  a  standing  *  offer  accepted  and  acted  upon  by 
the  company,  which  is  sufficient  consideration  for  the  promise.5 

3.  And  even  where  a  mere  stranger  subscribes  to  a  railway 
company,  with  others,  in  order  to  induce  the  company  to  build 
a  station  house  and  improve  the  roads  to  it,  and  to  aid  the  com- 
pany in  such  work,  and  the  company  perform  the  condition  on 
their  part,  the  subscription  is  upon  sufficient  consideration,  and 
may  be  enforced  against  the  subscribers.6 

4.  And  a  subscription  to  the  stock  of  a  railway  company,  con- 
ditioned to  be  void  unless  the  company  would  accept  the  convey- 
ance of  a  specific  tract  of  land  at  a  given  price,  is  a  mere  offer  to 
invest  the  land  in  shares,  and  until  accepted  by  the  company  is 
of  no  validity.7 

land.  It  is  there  held,  that  whenever  an  offer  is  made,  granting  to  a  party  a 
certain  time  within  which  he  is  to  be  entitled  to  decide  whether  he  will  accept 
it  or  not,  the  party  making  such  offer  is  not  at  liberty  to  withdraw  it  before  the 
lapse  of  the  appointed  time.  There  are  certainly  very  strong  reasons  in  support 
of  this  doctrine.  Highly  respectable  authors  regard  it  as  inconsistent  with  the 
plain  principles  of  equity,  that  a  person  who  has  been  induced  to  rely  on  such 
an  engagement  should  have  no  remedy  in  case  of  disappointment.  But,  whether 
wisely  and  equitably  or  not,  the  common  law  unyieldingly  insists  upon  a  consid- 
eration, or  a  paper  with  a  seal  attached. 

"  The  authorities,  both  English  and  American,  in  support  of  this  view  of  the 
subject,  are  very  numerous  and  decisive ;  but  it  is  not  deemed  to  be  needful  or 
expedient  to  refer  particularly  to  them,  as  they  are  collected  and  commented  on 
in  several  reports  as  well  as  in  the  text-books.  The  case  of  Cooke  v.  Oxley,  3 
T.  R.  653,  in  which  a  different  doctrine  was  held,  has  occasioned  considerable 
discussion,  and,  in  one  or  two  instances,  has  probably  influenced  the  decision. 
That  case  has  been  supposed  to  be  inaccurately  reported,  and  that  in  fact  there 
was  in  that  case  no  acceptance.  But,  however  that  may  be,  if  the  case  has  not 
been  directly  overruled,  it  has  certainly  in  later  cases  been  entirely  disregarded, 
and  cannot  now  be  considered  as  of  any  authority. 

"  As,  therefore,  in  the  present  case,  the  bill  sets  out  a  proposal  in  writing,  and 
an  acceptance  and  an  offer  to  perform,  on  the  part  of  the  plaintiffs,  within  the 
time  limited,  and  while  the  offer  was  in  full  force,  all  which  is  admitted  by  the 
demurrer,  so  that  a  valid  contract  in  writing  is  shown  to  exist,  the  demurrer 
must  be  overruled." 

5  See  this  subject  more  fully  discussed  in  §§  51,  55,  ante.  See,  also,  Johnson 
v.  Wabash  &  M.  V.  Railw.,  16  Ind.  R.  389. 

8  Kennedy  v.  Colton,  28  Barb.  59. 

7  Junction  Railroad  Company  v.  Reeve,  15  Ind.  R.  236. 

*99 


20G  ASSESSMENTS    OR    CALLS.  §  57. 

5.  A  subscription  upon  the  performance  of  a  condition  be- 
comes absolute  upon  such  performance.  The  subscription  takes 
effect  from  that  time  ;  the  first  instalment  required  to  be  paid  at 
the  time  of  subscription  then  becomes  due  and  payable,  and  the 
subscriber  liable  to  assessment  for  the  remainder.8 

6.  There  is  a  recent  case,9  wherein  propositions  are  declared 
which  seem  at  variance  with  the  general  rule,  that  subscriptions 
dependent  upon  conditions  are  not  effectual  until  such  conditions 
are  complied  with.  It  was  here  held,  that  commissioners  ap- 
pointed to  receive  subscriptions  to  the  stock  of  a  projected  rail- 
way company  are  so  far  limited  in  their  authority  that  they  have 
no  power  to  attach  conditions  to  subscriptions  received  by  them, 
and  where  they  do  so  the  act  is  not  binding  upon  the  company, 
and  that  after  the  organization  of  the  corporation,  the  directors 
have  no  power  to  assume  the  subscriptions  upon  the  conditions 
named,  i.  e.  that  the  company  assume  the  payment  of  the  sub- 
scriptions and  release  the  subscribers. 

7.  But  we  apprehend  that  if  this  decision  is  maintainable  upon 
recognized  rules  of  law,  it  must  be  because  the  whole  scheme  of 
such  a  subscription  evidences  a  covert  fraud  upon  the  contem- 
plated corporation,  and  that  the  act  of  the  directors  is  but  one 
step  in  fulfilment  of  the  scheme,  as  the  case  shows  the  action  of 
the  first  board  of  directors  was  immediately  repealed  upon  the 
coming  in  of  a  new  board,  and  the  court  held  it  competent  to 
show  what  took  place  at  the  time  of  passing  the  first  resolutions 
with  a  view  to  establish  the  fraudulent  purpose. 

8  Ashtabula  &  New  L.  Railw.  v.  Smith,  15  Ohio  N.  S.  328. 

9  Bedford  Railw.  Co.  v.  Bowser,  48  Perm.  St.  29.  See,  also,  Lowe  v.  E.  & 
K.  Railw.,  1  Head,  659. 


§58. 


SUBSCRIPTIONS   UPON   SPECIAL   TERMS. 


207 


SECTION    XII 


Subscription  upon  Special  Terms. 


1 .  Subscriptio7is  not  pat/able,  in  money. 

2.  Subscriptions  at^  a  discount,  not  binding. 
n.  2.   Contracts  to  release  subscriptions  not 

binding. 

3.  Subscriptions  after  organization. 

4.  President  may  accept  conditional  subscrip- 

tions. 

5.  Recent  case  in  Alabama. 

6.  True  rule  to  be  deduced  from  all  the  cases. 


7.  Important  case  on  par  values. 

8.  Difficidty  of  maintaining  them. 

9.  Sad  effects  of  opposite  course  on  com- 
mercial fair  dealing. 

10.  Can  a  corporation  stipulate  to  pay  in- 

terest on  stocks  ? 

1 1 .  Such  a  certificate,  of  stock  is  not  thereby 

rendered  inoperative  for  legitimate  pur- 
poses. 


§58.  1.  It  is  well  settled,  that  a  railway,  or  other  joint-stock 
company,  cannot  receive  subscriptions  to  their  stock,  payable  at 
less  sums,  or  in  other  commodities,  than  that  which  is  demanded 
of  other  subscribers.  Hence  subscriptions,  payable  in  store- 
pay,  or  otherwise  than  in  money,  will  be  held  a  fraud  upon  the 
other  subscribers,  and  payment  enforced  in  money.1 

2.  So  too  in  a  case  where  subscriptions  to  stock  of  such  a 
company  are,  by  the  agents  of  the  company,  agreed  to  be  re- 
ceived at  a  discount,  below  the  par  value  of  the  shares,  it  will  be 
regarded  as  a  fraud  upon  the  other  shareholders,  and  not  binding 
upon  the  company.2 

\_Henry  v.  Vermilion  &  Ashland  Railw.  Co.,  17  Ohio  R.»187.  But  in  a  re- 
cent case,  Philadelphia  &  West  Chester  Railw.  v.  Hickman,  28  Penn.  St.  318,  it 
is  said  the  company  may  compromise  subscriptions  for  slock,  which  are  doubtful, 
upon  receiving  part  payment ;  or  may  receive  payment  in  labor  or  materials,  or 
in  damages  which  the  company  is  liable  to  pay,  or  in  any  other  liability  of  the 
corporation.  The  certificates  of  stock  in  this  case  were  issued  to  the  contractors, 
in  part  payment  of  work  done  by  them  upon  the  road ;  to  others,  in  part  pay- 
ment for  a  locomotive,  for  sleepers,  for  land-damages,  and  for  cars.  We  do  not 
understand  how  there  can  be  any  valid  objection  to  receiving  payment  for  sub- 
scriptions to  the  capital  stock  of  a  railway  company  in  this  mode,  if  the  shares, 
so  disposed  of,  are  intended  to  be  reckoned  at  their  fair  cash  value,  at  the  time 
of  the  contract  being  entered  into.  It  is  certain,  contracts  of  this  kind  have  been 
very  generally  recognized  by  the  courts  as  valid,  and  no  fraud  upon  the  other 
subscribers. 

3  Mann  v.  Cooke,  20  Conn.  R.  1 78.  In  this  case  the  defendant  subscribed 
for  forty  shares  in  the  capital  stock  of  a  railway  company,  upon  condition  that 


208  ASSESSMENTS   OR   CALLS.  §  58. 

3.  In  a  recent  case  in  Pennsylvania,3  it  is  said  that  subscrip- 
tions made  to  the  capital  stock  of  a  corporation  before  its  organ- 
all  future  calls  should  be  paid,  as  required,  or  the  shares  should  become  the  prop- 
erty of  the  company.  He  thereupon  received  certificates  of  ownership  of  the 
forty  shares,  the  special  terms  of  his  subscription  not  being  known  to  the  other 
subscribers. 

Sometime  afterwards,  the  company  being  largely  indebted,  and  insolvent,  and 
the  greater  part  of  the  instalments  on  its  stock  being  unpaid,  the  president  made 
an  arrangement  with  defendant  that  he  should  immediately  pay  the  instalments 
on  twenty  shares  of  his  stock,  in  full,  and  he  was  thereupon  to  be  discharged  from 
all  liability  on  the  other  twenty  shares.  Defendant  complied  with  these  terms, 
and  the  money  paid  went  for  the  benefit  of  the  company. 

The  plaintiff'  was  appointed  receiver  of  the  effects  of  the  company,  and  brought 
this  bill  in  equity  to  obtain  payment  of  the  balance  due  upon  the  other  twenty 
shares,  and  it  was  held  :  — 

1 .  That  the  subscription  for  the  stock  was  in  legal  effect  the  same  as  an  ordi- 
nary subscription  for  stock,  without  condition. 

2.  Tha,t  the  arrangement  made  with  the  president  of  the  company  was  void, 
as  a  fraud  upon  stockholders  and  creditors. 

3.  That  the  company,  being  created  for  public  purposes,  could  not  receive 
subscriptions  under  a  private  arrangement  at  less  than  the  par  value  of  the  stock, 
as  this  would  deprive  the  company  of  so  much  of  its  available  means,  and  thus 
operate  as  a  fraud  upon  all  parties  interested. 

But  where  one  paid  for  stock  in  a  railway  company,  under  a  secret  agreement 
with  the  commissioner  of  contracts  that  he  might  receive  land  of  the  company 
at  a  future  day,  and  pay  in  the  stock  certificate,  and  the  company  declined  to 
ratify  the  contract,  it  was  held  the  subscriber  was  released  from  his  portion  of 
the  contract,  and  might  recover  the  money  he  paid  for  the  stock  of  the  compa- 
ny. Weeden  v.  Lake  Erie  &  Mad  River  Railway,  14  Ohio,  563.  But  in  the 
case  of  the  Cincinnati,  Indiana,  &  Chicago  Railw.  v.  Clarkson,  7  Ind.  R.  595, 
it  seems  to  be  considered,  that  the  company  are  bound  by  a  contract  to  compen- 
sate a  solicitor  of  subscriptions  to  the  capital  stock,  payable  in  land,  but  no  ques- 
tion is  made  in  regard  to  the  validity  of  the  subscriptions.  The  solicitors  were 
ordered  by  the  directors  to  accept  such  subscriptions,  and  were  to  have  two  per 
cent  on  all  which  were  accepted  by  the  company,  and  the  contract  was  held 
binding  upon  the  company.  An  agreement  by  a  railway  company,  that  a  sub- 
scriber for  stock  may  pay  the  full  amount,  or  any  part  of  his  subscription,  and 
receive  "  interest  thereon  until  the  road  goes  into  operation,"  does  not  oblige 
the  company  to  pay  interest  before  the  road  goes  into  operation.  Waterman  v. 
Troy  &  Greenfield  Railway,  8  Gray,  433.  See,  also,  Buffalo  &  N.  Y.  City  Railw. 
v.  Dudley,  4  Kernan,  33G.     Ante,  §  54,  pi.  4. 

An  agreement  to  pay  interest  upon  stock  "  as  soon  as  paid,"  means  fully  paid. 
Miller  v.  Pittsburg  &  Connellsville  Railw.,  40  Penn.  St.  237. 

8  Pittsburg  &  Connellsville  Railw.  v.  Stewart,  41  Penn.  St.  54.  The  question 
of  the  presumptive  effect  of  the  conduct  of  a  subscriber  after  the  organization  of 


§  58.  SUBSCRIPTIONS   UPON   SPECIAL   TERMS.  209 

ization,  must  always  be  payable  in  money  only.  But  after  the 
organization,  the  company  may  stipulate  with  the  subscriber  for 
payment  in  any  other  mode,  and  can  only  enforce  the  contract 
according  to  its  terms ;  and  the  act  of  the  president  of  the  com- 
pany in  accepting  conditional  subscriptions  is  binding  upon  the 
company. 

4.  It  is  also  held  in  the  same  case,3  that  the  fact  the  subscriber 
makes  part  payment  in  money  before  call,  will  not  estop  him 
from  setting  up  the  special  contract  in  defence  of  an  after  call. 

5.  But  in  a  somewhat  recent  case  in  Alabama,4  it  was  held 
that  a  subscription  to  the  capital  stock  of  a  railway  company,  in 
express  terms  made  payable  in  work,  in  grading  the  line,  to  be 
taken  at  the  public  or  private  letting  and  performed  to  the  ac- 
ceptance of  the  company's  engineer,  could  not  be  enforced 
against  the  subscriber  until  he  had  had  reasonable  opportunity 
to  perform  the  contract  in  the  manner  specified  by  its  terms. 
But  if,  after  that,  the  defendant  failed  on  his  part  to  perform  it, 
he  was  liable  to  pay  the  amount  in  money.  It  is  here  said  that 
the  subscriber  must  take  notice  of  the  published  lettings  of  the 
work. 

6.  The  cases  may  seem  conflicting  upon  this  point ;  but  the 
true  principle  seems  to  be,  that  the  corporation  can  only  enforce 
the  contract  of  subscription  according  to  its  terms,  and  of  this 
the  subscriber  cannot  complain,  or  resist  successfully  the  en- 
forcement of  his  subscription.  But  so  far  as  the  creditors  of  the 
company  are  interested  in  the  matter,  they  may  hold  the  di- 
rectors responsible  for  having  received  the  amount  of  the  capital 
stock  in  money.  And  as  to  the  duty  of  the  directors,  they  can- 
not, in  strictness  and  fairness,  receive  subscriptions  payable  in  any- 
thing but  money ;  nor  can  they  launch  the  company  until  the 
whole  capital  stock  is  subscribed  in  money.  And  any  fraud  or 
evasion  in  this  particular  will  render  the  directors  responsible 
for  the  debts  of  the  company,  as  in  equity  and  fair  dealing  it 
should. 

the  company,  in  attending  and  taking  part  in  the  meetings  of  the  company, 
upon  the  proper  construction  of  any  special  contract  with  the  company,  is  here 
considerably  discussed. 

4  Eppes  v.  M.  G.  &  T.  Railw.  35  Alabama  R.,  33  ;  H.  &  P.  Plank  R.  Co.  v. 
Bryan,  6  Jones  Law,  82. 

VOL.  i.  14 


210  ASSESSMENTS   OR   CALLS.  §  58. 

7.  There  is  a  very  sensible  case 5  in  North  Carolina  bearing 
upon  this  question.  The  legislature  had  authorized  the  town 
of  Newborn  to  take  stock  in  a  company  for  improving  the  naviga- 
tion of  the  river  Neuse,  by  which  the  business  of  the  town  was 
expected  to  be  advanced.  The  town  was,  by  the  act,  authorized 
to  pay  for  the  stock  subscribed  by  them  with  their  bonds,  to  be 
issued  and  sold  on  certain  terms,  but  the  amount  of  bonds  issued 
was  restricted  to  the  amount  of  the  stock  subscribed,  and  it  was 
held,  that  as  the  corporation  could  not,  except  by  legislative  sanc- 
tion, accept  anything  but  money  in  payment  of  stock,  and  could 
not  issue  stock  at  any  rate  below  par,  that  the  bonds  could  not 
be  sold  below  par ;  and  that,  to  a  mandamus  to  compel  the  town 
to  pay  for  stock  thus  subscribed,  it  must  be  regarded  as  a  suffi- 
cient return,  that  the  authorities  of  the  municipality  had  pre- 
pared and  executed  the  bonds,  and  had  offered  the  same  for  sale 
by  public  advertisement,  and  had  diligently  endeavored  otherwise 
to  effect  a  sale  of  the  same  on  the  terms  prescribed  by  the  statute, 
and  had  not  been  able  to  sell  the  same. 

8.  This  case  unquestionably  puts  these  perplexing  inquiries 
upon  the  true  basis,  that  is,  of  fair  dealing,  or  no  dealing  at  all. 
But  we  apprehend  that  railway  contractors  and  builders  would 
regard  it  as  placing  the  matter  in  a  very  impracticable  light. 
And  we  are  not  prepared  to  say  how  far  the  courts  will  feel 
justified  in  departing  from  the  strict  letter  of  the  law  in  these 
particulars,  out  of  deference  to  the  speculative  tendencies  of  the 
age. 

9.  It  is  certain  that  corporate  stocks,  from  the  first,  are  now 
always  more  or  less  a  matter  of  speculation  in  the  market ;  and 
the  same  is  true  of  all  municipal  bonds  issued  in  aid  of  enter- 
prises affecting  the  interests  of  such  corporations.  And,  in  fact, 
no  one  ever  dreams  of  demanding  strictly  par  values,  in  dealing 
either  with  the  bonds  or  the  stock,  and  we  do  not  suppose  it  can 
now  ever  be  brought  back  to  the  strictly  par  basis.    There  is,  too, 

5  Neuse  River  Nav.  Co.  v.  Commissioners  of  Newbern,  7  Jones  Law,  275. 
But  in  Shoemaker  v.  Goshen  Turnpike  Co.  14  Ohio  N.  S.  569,  from  the  mere  per- 
mission in  the  statute  to  submit  the  question  of  subscription  to  the  voters  of  a 
township,  the  court  implied  the  power  to  issue  bonds  in  payment  of  such  sub- 
scription in  the  usual  negotiable  form,  and  to  negotiate  them  to  the  company  at 
par,  in  payment  for  the  stock  subscribed. 


§  58.  SUBSCRIPTIONS   UPON   SPECIAL   TERMS.  211 

another  great  embarrassment  in  the  way  of  return  to  par  values. 
We  have,  in  fact,  no  par  basis  to  which  to  return.  Until  a 
specie  basis  is  reached,  everything  is  at  the  mercy  of  speculators 
and  monopolists.  This  is,  no  doubt,  a  very  melancholy  state  of 
affairs  to  have  a  great  commercial  country  in.  But,  so  long  as 
commercial  men  endure  it,  and  the  government  submits  to  it, 
we  do  not  see  how  the  courts  can  remedy  it.  But  it  is  certainly 
refreshing  to  see  courts  struggling  to  resist  in  every  way  in  their 
power  such  a  fearful  tide  of  evil.  In  our  humble  judgment, 
unless  some  mode  of  escape  is  found,  speculation  and  monopoly 
will  eat  out  all  honesty  and  fair  dealing  in  all  commercial  trans- 
actions, and  the  country  will  in  its  commerce  become  a  band  of 
legalized  plunderers  upon  each  other.  The  monopoly  in  flour 
and  grain  and  some  of  the  other  staples  of  the  country  is  scarcely 
less  than  that  at  the  present  time. 

10.  There  seems  to  be  some  question  whether  a  corporation 
can  stipulate  to  pay  interest  upon  its  stock  certificates  from  the 
first,  without  regard  to  the  earnings  of  the  company.  It  is  cer- 
tain such  a  stipulation  is  at  variance  with  the  ordinary  duties  of 
corporations,  and  will  not  therefore  come  within  the  range  of  the 
implied  authority  of  the  directors  of  the  company.  But  in  one 
case,6  it  seems  to  have  been  considered,  that  the  stockholders 
might  so  ratify  such  a  stipulation  as  to  render  it  binding  upon 
the  company.  But  we  should  very  seriously  question  if  any 
such  power  is  implied  from  the  general  grant  of  corporate  power 
for  ordinary  business  purposes,  like  that  of  railways.  It  would 
seem  to  require  a  special  delegation  of  authority  by  the  legisla- 
ture, and  in  that  form  it  is  nothing  else  but  a  device  for  borrow- 
ing money,  in  advance  of  launching  the  corporation  upon  its 
legitimate  functions. 

11.  The  case  last  cited 6  decided  that  such  a  stipulation,  super- 
added to  a  certificate  of  stock,  will  not  defeat  its  original  effect 
of  making  the  holder  a  member  of  the  corporation ;  and  that 
if  certificates  of  stock  be  so  issued  by  the  directors,  it  will  be  re- 
garded as  a  sufficient  ratification  of  them  by  the  corporation  that 

8  McLaughlin  v.  Detroit  &  Milw.  Railw.  Co.  8  Mich.  R.  100.  It  seems 
scarcely  allowable  to  treat  the  vote  of  the  majority  as  a  ratification  of  an  act  of 
the  directors  beneficial  to  the  minority,  and  at  the  same  time  not  binding  upon 
the  minority  except  by  their  own  consent. 


212 


ASSESSMENTS   OR   CALLS. 


§59. 


at  a  stockholders'  meeting  a  majority  voted  to  pay  such  interest 
in  the  bonds  of  the  company  ;  but  the  holders  are  not  thereby 
compellable  to  accept  payment  in  that  mode,  unless  they  assented 
to  the  vote. 


*SECTION    XIII. 


Equitable  Relief  from  Subscriptions  obtained  by  Fraud. 


1.  Substantial  misrepresentations  in  obtaining 

subscriptions  toil!  avoid  them. 

2.  But  for  circumstantial  misconduct  of  the 


directors,  in  the  matter,  they  alone  are 
liable. 
3.  Directors  cannot  make  profit  for  themselves. 


§  59.  1.  The  directors  of  a  railway  company,  who  make  repre- 
sentations on  behalf  of  the  company  to  induce  persons  to  sub- 
scribe for  the  stock,  so  far  represent  the  company  in  the  transac- 
tion, that  if  they  induce  such  subscription  by  a  substantial  fraud, 
the  contract  will  be  set  aside  in  a  court  of  equity.1  The  proper 
inquiry  in  such  case  is,  "  Whether  the  prospectus,  so  issued, 
contains  such  *  representations,  or  such  suppression  of  existing 
facts,  as,  if  the  real  truth  had  been  stated,  it  is  reasonable  to  be- 
lieve the  plaintiff  would  not  have  entered  into  the  contract,  that 
is,  that  he  would  not  have  taken  the  shares  allotted  to  him,  and 
those  which  he  purchased." 2 

1  Sir  John  Romilhj,  M.  R.,  in  Pulsford  v.  Richards,  19  Eng.  L.  &  Eq.  387,  392. 
The  prospectus  issued  in  such  cases  is  to  be  regarded  as  a  representation.  And 
where  one  is  induced  to  take  shares  in  a  joint-stock  company,  through  the  false 
and  fraudulent  representations  of  the  directors,  he  is  not  liable  to  calls  for  the 
purpose  of  paying  the  expenses  of  the  company.  The  Royal  British  Bank, 
Brockwall's  case,  29  Law  Times,  375. 

And  where  one  of  the  directors  of  a  company  put  the  name  of  an  extensive 
stockholder  in  the  company,  who  resided  in  a  foreign  country,  to  a  new  sub- 
scription for  forty  additional  shares,  without  consultation  with  such  person,  upon 
the  belief  that  he  would  ratify  the  act,  and,  upon  being  informed  of  such  act,  he 
made  no  objection  for  the  period  of  nearly  seven  years,  during  which  time  the 
company  had  applied  the  dividends  upon  his  stock  in  payment  of  such  subscrip- 
tion, having  no  intimation  of  any  dissent  upon  his  part,  it  was  held  the  subscrip- 
tion thereby  became  binding,  and  that  the  party  could  not  recover  such  divi- 
dends of  the  company.  Philadelphia,  Wilmington,  &  Baltimore  Railw.  v.  Cowell, 
28  Penn.  St.  329. 

-  Pulsford  v.  Richards,  19  Eng.  L.  &  Eq.  392;  Jennings  v.  Broughton,  19 
Eng.  L.  &  Eq.  420.  One,  to  entitle  himself  to  be  relieved  from  his  subscrip- 
*  100,  101 


§  59.  SUBSCRIPTIONS   OBTAINED   BY   FRAUD.  213 

2.  But  the  omission  to  state  in  a  prospectus  the  number  of 
shares  taken  by  the  directors,  or  other  persons,  in  their  interest, 
is  no  such  fraud  as  will  enable  a  subscriber  to  avoid  his  subscrip- 
tion.2 The  fact  that  the  directors  of  the  company  had  entered 
into  a  contract  with  one,  as  general  superintendent  of  construc- 
tion, for  four  per  centum  upon  the  expenditure ;  and  that  this 
was  an  exorbitant  compensation,  and  was,  in  fact,  intended  to 
compensate  such  person  for  his  services,  in  obtaining  the  charter, 
and  that  this  is  not  stated  in  the  prospectus,  is  no  such  suppres- 
sion as  will  exonerate  subscribers  for  stock.  "There  was  not  the 
suppression  of  a  fact,  that  affected  the  intrinsic  value  of  the  un- 
dertaking. That  value  depended  upon  the  line  of  the  projected 
railway,  the  population,  the  commercial  wealth,  the  traffic  of  the 
places  through  which  it  passed,  the  difficulties  of  the  construc- 
tion, and  the  cost  of  the  land  required.  Extravagance  in  the 
formation  of  a  line  of*  railway  is  a  question  of  liability  of  the 
individual  directors  to  the  shareholders,  but  not  a  ground  for  an- 
nulling the  contract  between  them."  2 

3.  But  the  learned  judge  here  suggests,  with  great  propriety, 
that  if  the  directors  have  made  contracts,  in  the  course  of  the 
performance  of  their  duties,  from  which  advantage  is  expected 
to  arise  to  themselves,  or  to  others,  for  their  benefit,  mediately 
or  immediately,  they  may,  in  a  court  of  equity,  be  made  to  stand 
in  the  place  of  trustees  to  the  shareholders.3 

tion,  must  show  that  he  acted  upon  the  false  representations  of  the  directors  in  a 
matter  of  fact  material  to  the  value  of  the  enterprise,  and  not  upon  the  mere 
speculation  of  the  directors,  or  upon  his  own  exaggerated  expectations  of  the 
prospective  success  and  value  of  the  undertaking.  See,  also,  upon  this  general 
subject,  the  remarks  of  the  Master  of  the  Rolls,  p.  427. 
*  Post,§  179. 


214 


ASSESSMENTS   OR    CALLS. 


§60. 


♦SECTION    XIV. 


Forfeiture  of  Shares.  —  Relief  in  Equity. 


1 .  Requirements  of  charter  and  statutes  must 

be  strictly  pursued. 

2.  If  not,  equity  will  set  aside  the  forfeiture. 

3.  Must  credit  the  stock  at  full  market  value. 


4.  Provisions  of  English  statutes. 

5.  Evidence  must  be  express,  that  all  requisite 

steps  were  pursued. 


§60.  1.  The  company,  in  enforcing  the  payment  of  calls  by 
forfeiture  of  the  stock,  must  strictly  pursue  the  mode  pointed 
out  in  their  charter  and  the  general  laws  of  the  state.  This  is  a 
rule  of  universal  application  to  the  subject  of  forfeitures,  and 
one  which  the  courts  will  rigidly  enforce,  and  more  especially 
where  the  forfeiture  is  one  of  the  prescribed  remedies,  given  to 
the  party,  and  against  which  equity  does  not  relieve,  when  fairly 
exercised.1 

2.  But  as  the  company,  in  such  case,  ordinarily  stand  in  both 
relations  of  vendor  and  vendee,  their  conduct,  in  regard  to  fair- 
ness, will  be  rigidly  scrutinized,  and  the  forfeiture  set  aside  in 
courts  of  equity,  upon  evidence  of  slight  departure  from  perfect 
fairness. 

3.  Hence  where  the  company  declared  the  stock  cancelled, 
and  credited  the  value  at  a  less  sum  than  the  actual  market 
price  at  the  time,  but  more  than  it  would  probably  have  sold 
for  if  that  number  of  shares  had  been  thrown  at  once  into  the 
market,  the  court  set  aside  the  forfeiture,  on  the  ground  that  the 
company  were  bound  to  allow  the  highest  market  price  which 
could  be  obtained,  without  speculating  on  what  might  be  the 
effect  of  throwing  a  large  number  of  shares  into  the  market.2 

1  Sparks  v.  Liverpool  Water-Works,  13  Vesey,  428 ;  Prendergast  v.  Turton,  1 
Younge  &  Coll.  N.  R.  98,  110-112.  This  case  is  put  mainly  upon  the  ground  of 
delay  and  acquiescence,  but  there  is  little  doubt  it  would  have  been  maintained, 
upon  the  general  ground  stated  in  the  text.  See  Edinburgh,  Leith,  &  N.  H. 
Railw.  v.  Hibblewhite,  6  M.  &  W.  707  ;  s.  c.  2  Railw.  C.  237. 

But  where  the  deed  of  settlement  of  a  joint-stock  company  provides  for  a  for- 
feiture of  the  shares  without  notice  to  the  subscriber,  the  forfeiture  determines 
the  title  without  notice.  Stewart  v.  Anglo-California  Gold  Mining  Co.,  14  Eng. 
L.  &  Eq.  51. 

*  Stubbs  v.  Lister,  1  Y.  &  Coll.  N.  C.  81. 
*102 


§60a. 


RIGHT   TO   INSPECT   BOOKS   OF   COMPANY. 


215 


4.  By  the  English  statute  the  company  are  not  allowed  to 
forfeit  a  larger  number  of  shares  than  will  produce  the  defi- 
ciency required.3  And  upon  payment  to  the  company  of  the 
amount  of  arrears  of  *  calls,  interest,  and  expenses,  before  such 
forfeited  shares  are  sold  by  them,  the  shares  revert  to  the  former 
owner.3 

5.  The  evidence  of  the  company  having  pursued  the  require- 
ments of  their  act,  in  declaring  the  forfeiture,  must  be  express 
and  not  conjectural.4 


SECTION    XV. 


Right  of  Corporators  and  Others  to  inspect  Books  of  Company. 


1.  May    inspect    and    take    minutes   from 

books. 

2.  Discussion  of  the  extent  to   which   such 

books  are  evidence. 

3.  For  what  purposes  such  books  are  impor- 

tant as  evidence. 


4.  This  will  not  embrace  the  books  of  pro- 

ceedings of  directors. 

5.  Party  claiming  to  be  shareholder  may  in- 

spect register. 

6.  Allowed  when  suit  or  proceedings  pending. 

7.  Party  may  have  aid  in  the  inspection. 


§  60  a.  1.  It  seems  to  be  conceded  as  a  well-settled  rule  of 
law,  that  the  shareholders  or  corporators  in  a  joint-stock  corpora- 
tion are  entitled,  as  matter  of  right,  to  inspect  and  take  minutes 
from  the  books  of  the  company,  at  all  reasonable  times,1  as  they 
are  the  best  evidence  of  the  facts  there  registered,  and  equally 
the  property  of  all  the  proprietors.2  And  the  board  of  directors 
of  the  company  have  no  power  to  exclude  any  member  from  the 
exercise  of  this  right,  even  upon  the  ground  that  he  is  unfriendly 
to  the  interests  of  the  company.3 

2.  But  it  seems  to  be  now  settled  that  strangers  cannot  ob- 
tain the  inspection  of  such  books,  even  by  application  to  the 
court,  their  contents  being  regarded  as  private  memoranda,  in 
no  sense  possessing  any  public  character,4  notwithstanding  a 

3  8  &  9  Vict.  ch.  16,  §§  34,  35. 

4  Cockerell  v.  Van  Dieman's  Land  Co.,  36  Eng.  L.  &  Eq.  405. 
1  Angell  &  Ames  on  Corp.,  §  681. 

*  Owings  v.  Speed,  5  Wheaton,  420,  424. 

3  People  v.  Throop,  12  Wend.  183  ;  Cotheal  v.  Brouer,  1  Seld.  562. 

4  Mayor  of  Southampton  v.  Graves,  8  T.  R.  590. 

*103 


216  ASSESSMENTS   OR   CALLS.  §  60 «. 

contrary  practice  obtained5  for  a  time.  It  may  sometimes  have 
been  assumed,  that  the  books  of  private  corporations  possessed  a 
higher  quality  of  evidence  than  is  the  fact.  We  do  not  appre- 
hend that  they  are  in  any  sense  indispensable  primary  evidence 
of  the  facts  there  recorded ;  as  a  general  thing,  as  to  the  organi- 
zation of  the  company  and  the  choice  of  officers,  all  that  is 
requisite  will  be  to  prove,  de  facto,  the  organization  of  the 
company  and  the  exercise  of  such  offices  by  the  persons  named. 
Where  it  is  requisite  that  an  authority  be  given  by  the  majority 
vote  of  the  company,  it  may  most  conveniently  be  shown  by  the 
record,  and  perhaps  in  such  a  case  the  records  of  the  corporation 
may  fairly  be  considered  the  best  proof  of  the  facts,  if  in  the 
power  of  the  party,  as  if  the  corporation  itself  were  called  to 
prove  such  vote.  But  any  party  not  entitled  to  the  custody  of 
the  papers  can  only  prove  their  contents,  unless  the  corporation 
is  the  opposing  party,  in  which  case  he  may  give  notice  to  pro- 
duce the  books,  and,  in  default,  may  prove  the  contents  by  sec- 
ondary evidence.  It  has  been  decided  that  the  clerk  of  the  com- 
pany cannot  be  compelled  to  produce  the  books  on  a  subpoena 
duces  tecum.6 

3.  It  has  been  held  that  a  bank  depositor  has  the  right,  under 
proper  circumstances  and  in  a  reasonable  manner,  to  inspect  the 
books  of  the  bank.7  'In  practice  it  is  not  one  time  in  ten  where 
the  record  books  of  a  corporation  are  even  referred  to  in  court, 
unless  to  fix  a  date  or  the  precise  form  of  a  vote  upon  which  a 
power  is  made  to  depend.  But  the  registry  of  shareholders  may 
be  properly  regarded  as  the  primary  evidence  of  membership, 
but  by  no  means  indispensable  or  conclusive.8 

4.  Where  the  deed  of  settlement  under  which  a  corporation 
is  registered  contained  a  provision  "  that  the  books  wherein  the 
proceedings  of  the  company  are  recorded  shall  be  kept  at  the 
principal  office  of  the  company,  and  shall  be  open  to  the  inspec- 
tion of  the  shareholders,"  it  was  held  that  the  clause  gave  share- 

6  Mayor  of  Lynn  v.  Denton,  1  T.  R.  689,  and  cases  cited. 

8  Utica  Bank  v.  Hillard,  5  Cow.  419  ;  Narragansett  Bank  v.  Atlantic  Silk  Co., 
3  Met.  282. 

7  Union  Bank  v.  Knapp,  3  Pick.  96. 

8  We  refer  to  -what  we  have  before  said  upon  the  subject.  Ante,  §  18,  pi.  10- 
13  ;  §  23,  n.  7. 


§  60  a.  RIGHT   TO   INSPECT   BOOKS   OF   COMPANY.  217 

holders  power  only  to  inspect  the  books  of  minutes  of  proceed- 
ings of  the  general  meetings,  and  not  of  the  minutes  of  the 
proceedings  of  the  directors.9 

5.  In  a  somewhat  recent  English  case 10  it  was  held,  that  a 
party  whose  claim  to  be  a  shareholder  is  disputed  by  the  com- 
pany may,  in  an  action  brought  against  the  company,  inspect 
any  entries  in  the  register  which  relate  to  the  matter  in  dispute. 

6.  And  in  a  still  more  recent  case,  where  one  of  the  members 
of  the  corporation  was  in  controversy  with  the  company  in  re- 
gard to  his  right  to  act  as  one  of  the  governing  body,  which  right 
depended  upon  an  inspection  of  the  records  of  the  company  in 
order  to  determine  its  usages,  the  court  granted  permission  to 
inspect  the  books.11  But  it  is  here  said  this  will  not  be  done 
unless  there  is  a  suit  or  some  proceedings  pending. 

7.  And  in  the  inspection  of  all  documents,  by  order  of  the 
Court  of  Chancery,  the  party  in  whose  favor  the  order  is  made 
has  the  right  to  have  such  aid  in  the  inspection,  either  by  coun- 
sel, interpreters,  or  experts,  as  will  make  the  inspection  avail- 
able to  him.12 

9  Reg.  v.  Mariquita  Mining  Co.,  1  El.  &  El.  289. 

10  Foster  v.  The  Bank  of  England,  8  Q.  B.  689. 

11  Reg.  v.  Saddlers'  Co.,  10  W.  R.  87.     At  Chambers  Crompion,  J. 

12  Swansea  Vale  Railw.  Co.  v.  Budd,  12  Jur.  N.  S.  561.  As  to  the  effect  of 
the  certificate  of  the  clerk  of  a  corporation  under  its  seal,  see  New  Orleans  & 
O.  R.  Co.  v.  Lea,  12  Louis.  Ann.  388. 


218 


RIGHT   OF   WAY   BY   GRANT. 


§61. 


CHAPTER    X 


RIGHT   OF   WAY   BY    GRANT. 


SECTION    I. 


Obtaining  Lands  by  express  Consent. 


1.  Leave  granted  by  English  statute. 

2.  Persons  tinder  disability. 

3.  n.  2.  Money  to  take  the  place  of  the  land. 

4.  Consent  to  pass  railway. 

5.  Duty  of  railway  in  all  cases. 

6.  License  to  build  railway.     Extent  of  du- 

ration. 

7.  Company  bound  by  conditions  in  deed. 

8.  Parol  license  good,  till  revoked. 

9.  Sale  of  road  no  abandonment. 

10.  Deed  conveys  incidents  ;  not  explainable. 


11.  One  cannot   derogate  from   compulsory 

grant. 

12.  But  this  does  not  apply  to  accidental  in- 

cidents. 

13.  Case  in   New   York   Court  of  Appeals 

somewhat  at  variance  with  the  pre- 
ceding cases. 

14.  A  municipal  corporation  may  be  bound 

by  implied  contract  in  the  grant  of 
land  so  as  not  to  be  at  liberty  to  recede 
from  it. 


§  61.  1.  The  English  statute1  enables  railway  companies  to 
purchase,  by  contract  with  the  owners,  "  all  estates  or  interests 
(in  any  lands)  of  what  kind  soever,"  if  the  same,  or  the  right  of 
way  over  them,  be  requisite  for  their  purposes. 

2.  And  by  another  section  of  the  same  statute  such  companies 
are  empowered  to  purchase  such  lands  of  persons  legally  inca- 
pacitated to  convey  the  title,  under  other  circumstances,  as  guar- 
dians of  infants,  committees  of  lunatics,  trustees  of  charitable  or 
other  uses,  tenants  in  tail,  or  for  life,  married  women,  seized  in 
their  own  right,  or  entitled  to  dower,  executors  or  administra- 
tors, and  all  parties,  entitled,  for  the  time  being,  to  the  receipt 
of  the  rents  and  profits.2 

1  8  &  9  Vict.  ch.  18,  §  6. 

s  Hutton  v.  The  London  &  South  W.  Railw.,  7  Hare,  264.  Some  sugges- 
tions are  here  made  by  Vice-Chancellor  Wigram  in  regard  to  the  time  within 
■which  it  is  requisite  to  make  compensation  in  the  several  modes  of  taking  lands. 
The  principal  question  decided  is,  that  in  regard  to  lands,  injuriously  affected  by 
railway  works  upon  other  lands,  it  is  not  requisite  to  make  compensation  in  ad- 
vance. But  where  lands  are  purchased  from  persons  under  disability,  the  course 
of  devolution  of  the  property  is  not  thereby  changed,  but  the  money  paid  in 
*104 


§  61.        OBTAINING  LANDS  BY  EXPRESS  CONSENT.         219 

*  3.  The  valuation  in  this  latter  class  of  cases  is  to  be  made 
by  disinterested  persons,  and  the  price  paid  into  the  bank  for 
the  benefit  of  the  parties  interested. 

4.  And  where  a  railway  act  provided,  in  terms,  that  nothing 
therein  should  authorize  the  company  to  do  any  damage  or 
prejudice  to  the  lands,  estate,  or  property  of  any  corporation  or 
person  whatsoever,  without  the  consent  in  writing  of  the  owner 
and  occupier,  it  was  held  they  could  not  pass  the  line  of  another 
railway  without  their  consent,  although  the  withholding  of  such 
consent  should  frustrate  the  purpose  of  the  grant.3 

5.  In  this  country  most  of  the  railway  charters  contain  a 
power  to  the  company  to  acquire  lands,  by  agreement  with  the 
owner.  In  such  case  it  has  been  held  the  rights  of  the  company 
are  the  same  as  where  they  take  their  land  under  their  compul- 
sory powers.4  And  they  are  bound  to  the  same  care  in  con- 
structing their  road.4 

6.  And  where  the  railway  have  the  power  to  take  five  rods, 
through  the  whole  course  of  their  line,  and  a  land-owner  deeds 
them  the  full  right  to  locate,  construct,  and  repair,  and  forever 
maintain  and  use  their  road  over  his  land,  if,  in  laying  the  drains 
or  ditches  through  the  land,  it  becomes  necessary  to  go  beyond 
the  limits  of  the  five  rods,  in  order  to  guard  against  the  effect  of 
a  stream  to  be  passed,  the  company  may  lawfully  do  so  under 
the  grant.5 

compensation  is  to  take  the  place  of  the  land  and  to  be  treated  as  real  estate. 
Midland  Counties  Railw.  v.  Oswin,  3  Railw.  C.  497;  Ex  parte  Flamank,  1 
Simons  (n.  s.)  260;  In  re  Horner's  Estate,  13  Eng.  L.  &  Eq.  531  ;  In  re  Stew- 
art's Estate,  13  Eng.  L.  &  Eq.  533. 

3  Clarence  Railw.  v.  Great  North  of  England  Railw.,  4  Queen's  Bench,  45 ; 
Gray  v.  The  Liverpool  &  Bury  Railw.,  4  Railw.  C.  235. 

4  Whitcomb  v.  Vermont  Central  Railw.,  25  Vt.  R.  49,  69.  This  right  to 
acquire  lands,  by  contract  with  the  owners,  is,  by  implication,  if  not  expressly, 
limited  to  the  necessities  of  the  company,  we  presume,  the  same  as  taking  lands 
in  invitum,  and  cannot  be  extended  to  any  private  use.  But  if  the  owner  of  the 
land  consent  to  the  use,  the  constitutional  objection  is  removed,  and  the  right  to 
hold  the  land  is  a  question  between  the  company  and  the  public,  probably.  Dunn 
v.  City  of  Charleston,  Harper,  189  ;  Harding  v.  Goodlet,  3  Yerg.  41  ;  11  Wend. 
149  ;  Embury  v.  Conner,  3  Comstock,  516. 

5  Babcock  v.  The  Western  Railw.,  9  Met.  553.  But  a  contract  with  the 
owner  of  land,  for  leave  to  build  the  road  through  his  land,  and  staking  out  the 
track  through  the  land,  is  no  such  occupation  as  will  be  notice  of  the  right  of 

*105 


220  RIGHT   OF  WAY   BY   GRANT.  §  61. 

*  7.  In  case  of  a  deed  to  a  railway  company  of  land,  on  which 
to  construct  their  road,  the  assent  of  the  company  will  be  pre- 
sumed, and  they  are  bound  by  the  conditions  of  the  grant,  as 
that  the  road  shall  be  so  constructed  as  not  to  interfere  with 
buildings  on  the  land.6 

8.  An  oral  permission  to  take  and  use  land  for  a  railway  is  a  . 
bar  to  the  recovery  of  damages  for  such  use,  until  the  permission 
is  revoked.7  In  a  very  late  case  before  the  House  of  Lords,8  a 
very  important,  and  as  it  seems  to  us  reasonable  and  just  quali- 
fication is  annexed  to  the  familiar  doctrine  of  implied  assent  to 
the  appropriation  of  land  to  a  permanent  use  by  the  owner 
standing  by  and  not  objecting.  It  is  here  ruled,  "  If  a  stranger 
builds  upon  the  land  of  A.,  supposing  it  to  be  his  own,  and»A. 
remains  wilfully  passive,  equity  will  not  allow  him  to  profit  by 
the  mistake  ;  but  if  the  stranger  knows  that  the  land  upon  which 

the  company  against  a  subsequent  mortgagee.  Merritt  v.  Northern  Railw.,  12 
Barb.  605.  But  the  payment  by  the  company  of  the  price  of  the  land,  and 
changing  their  route  in  faith  of  the  title,  might  give  them  an  equity  superior  to 
that  of  a  subsequent  mortgagee.  lb.  The  deed  of  one  tenant  in  common  is  a 
good  release  of  his  claim  for  damages,  although  it  convey  no  right  as  against  his 
co-tenant.  Draper  v.  Williams,  2  Mich.  R.  536.  But  an  agreement  to  sell  land 
to  a  railway  company,  and  a  tender  of  the  price  by  the  company,  creates  no  title 
in  them.     Whitman  v.  Boston  &  Maine  Raihv.,  3  Allen,  133. 

6  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  74.  And  the  rights 
and  duties  of  the  company,  in  such  case,  are  precisely  the  same  as  if  the  land 
had  been  condemned,  by  proceedings  in  invitum,  under  the  statute.  Norris  v. 
Vt.  Central  Railw.,  28  Vt.  R.  99.  Such  grant  carries  the  incidents  neces- 
sary to  its  enjoyment.  And  if  it  becomes  necessary,  in  constructing  the  road, 
to  make  a  deep  cut,  that  may  be  done,  and  the  company  are  not  bound  to  pro- 
tect the  banks  of  the  excavation  by  a  wall.  Hortsman  v.  Lexington  &  Cov. 
Railw.,  18  B.  Mon.  218.  See  also  Louisville  &  Nash.  R.  v.  Thompson,  18  B. 
Mon.  735. 

7  Miller  v.  Auburn  &  Syracuse  Railroad,  6  Hill,  61.  And  such  license,  when 
executed,  by  the  construction  of  the  work,  is  not  allowed  to  be  revoked.  The 
only  relief  the  party  is  entitled  to  is  compensation  for  his  land.  Water  Power  v. 
Chambers,  1  Slock.  Ch.  471.  And  it  was  held  in  a  somewhat  recent  English 
case,  Corby  v.  Hill,  31  Law  Times,  181,  that  where  the  owner  of  land  had  given 
oral  permission  to  one  for  a  private  way,  he  could  not  obstruct,  or  give  permis- 
sion to  others  to  obstruct,  such  way ;  and  that  where  a  third  person,  by  permis- 
sion of  the  landowner,  placed  building  materials  in  the  way,  whereby  an  in- 
jury accrued  to  the  person  having  the  way,  he  might  sue  for  such  injury. 

8  Ramsden  v.  Dyson,  12  Jur.  N.  S.  506. 

*106 


§  61.        OBTAINING  LANDS  BY  EXPRESS  CONSENT.         221 

he  is  building  belongs  to  A.,  then  A.  may  assert  his  legal  rights 
and  take  the  benefit  of  the  expenditure.  And  a  tenant  building 
upon  his  landlord's  land,  in  the  absence  of  such  special  circum- 
stances, acquires  no  right  against  him  at  the  expiration  of  the 
tenancy.  But  a  mere  license  to  build  works  connected  with  a 
railway,  the  damages  to  be  settled  with  a  person  named,  or  "  on 
equitable  terms  hereafter,"  does  not  amount  to  any  definite 
agreement.9 

9.  Where  land  is  conveyed,  for  the  use  of  a  railway,  upon 
condition  that  it  shall  revert  to  the  owner  upon  the  abandon- 
ment of  the  road,  and  the  road  was  sold,  under  a  mortgage,  to 
the  state,  and  by  the  state  and  by  new  companies  chartered  for 
that  purpose  completed,  it  was  held,  that  the  grantor  was  not 
entitled  to  hold  the  land.10 

10.  Where  land  was  conveyed  to  a  railway  company,  for  the 
purpose  of  constructing  their  road,  on  which  was  a  tenement, 
and  to  this  water  was  conveyed  by  an  aqueduct  from  another 
portion  *  of  the  land  of  the  defendant,  and  the  price  of  the  land 
was  fixed  by  the  commissioners,  the  defendant  at  the  time 
claiming  the  right  to  withdraw  the  water,  and  this  not  being 
objected  to  by  the  president  and  engineer  of  the  company,  who 
were  present  at  the  time  it  was  held,  that  the  deed  containing 

9  Fitchburg  Railw.  v.  Boston  &  Maine  Railw„  3  Cusb.  58. 

10  Harrison  v.  Lexington  &  Obio  Railw.,  9  B.  Mon.  470.  So,  too,  if  land  is 
conveyed  on  condition  tbat  an  embankment  (water-tight)  over  a  brook  crossing 
tbe  land  sball  be  erected  by  tbe  grantors,  and  that  tbe  embankment,  or  dam, 
with  tbe  floodgates  or  sluices  therein  might  be  used  for  hydraulic  purposes  by 
the  grantors,  their  heirs,  and  assigns,  the  grantees  not  to  be  liable  to  the  grantors 
for  any  damage  they  might  sustain  by  a  break  in  such  dam,  unless  the  same 
should  happen  through  the  gross  neglect  or  wilful  misfeasance  of  the  grantees, 
but  that  the  grantees  should  repair  the  dam  forthwith,  it  was  held  to  be  a  con- 
dition subsequent,  the  failure  to  perform  which  would  give  the  grantors,  or  their 
heirs,  a  right  of  re-entry  at  their  election.  But  it  was  further  said,  that  the  con- 
veyance of  the  estate  by  the  grantees  defeated  the  condition,  and  that  the 
assignee  had  no  remedy  upon  it.  Underbill  v.  Saratoga  &  Wash.  Railw.  20 
Barb.  455.  And  such  conditions  may  be  waived  by  the  party  in  whose  favor 
they  are  made,  as  in  a  grant  of  land  for  a  railway  track,  the  road  to  be  com- 
pleted by  a  day  named,  or  the  deed  to  be  void,  which  was  not  done ;  but  the 
grantor  continued  to  treat  the  company  as  having  the  right  to  use  the  land  for 
the  purposes  of  the  grant,  and  it  was  held  a  waiver  of  the  condition.  Ludlow  v. 
New  York  &  Harlem  Railw.,  12  Barb.  440. 

*107 


222  RIGHT   OF   WAY   BY   GRANT.  §  61. 

no  exception  in  regard  to  the  water,  the  company  acquired  the 
right  to  its  use,  in  the  manner  it  had  been  before  used,  and  the 
defendant  was  liable  to  an  action  for  diverting  it,11  and  the  in- 
tention of  the  parties  could  not  be  determined  by  extraneous 
evidence. 

11.  So,  also,  the  principle  that  a  grantor,  knowing  the  pur- 
pose for  which  his  deed  is  accepted,  cannot  derogate  from  his 
own  grant,  applies  to  the  case  of  a  compulsory  conveyance,  un- 
der legislative  authority,  and  the  act  is  sufficient  notice  to  the 
grantor  of  the  purposes  of  the  conveyance.  But  this  rule  will 
not  apply  to  any  accidental  state  of  facts,  existing  at  the  time  of 
the  grant,  as  the  support  resulting  from  an  excavation  being 
filled  with  water  at  the  time,  so  as  to  entitle  the  grantee  to  insist 
upon  its  continuance. 

12.  And  accordingly,  where  a  railway  took  the  land  above  a 
mine  for  the  support  of  the  abutments  of  a  bridge,  the  mine  leav- 
ing been  abandoned  for  forty  years  and  full  of  water,  it  was  held 
they  could  not  insist  upon  having  the  water  remain  in  the  pit, 
as  a  support  to  the  earth,  but  that  they  were  entitled  to  be  pro- 
tected from  damage  likely  to  result  from  working  the  mine.12 

13.  If  a  railway  have  power  to  take  land  by  consent  of  the 
owner,  an  oral  consent  is  sufficient.13  And  if  the  company  take 
land  and  put  it  to  their  use  without  the  consent  of  the  owner,  or 
any  other  proceeding  under  their  powers,  it  is  a  trespass,  but 
can  only  be  sued  by  the  person  then  owning  the  land,  and  not 
by  his  grantee.13  But  this  case  was  reversed  upon  error,  and  it 
was  decided,  somewhat  at  variance  with  the  present  English  rule, 
that  such  a  license,  coupled  with  an  interest,  was  still  revocable 
at  the  option  of  the  licensor.  But  the  final  conclusion  of  the 
court  of  error,  that  "  consent,"  in  such  an  act,  meant  the  effec- 
tual consent  of  the  law  expressed  with  due  formality,  seems  al- 
together the  more  reasonable  ground  upon  which  to  place  the 
case. 

14.  The  New  York  Court  of  Appeals14  held  that  municipal 

11  Vermont  Central  Railw.  v.  Hills,  23  Vt.  R.  681. 

12  North  Eastern  Railw.  Co.  v.  Elliott,  6  Jur.  N.  S.  817. 

13  Central  Railw.  Co.  v.  Hitfield,  5  Dutcher,  206  ;  s.  c.  in  error,  Id.  571. 

14  Mayor  &c,  of  the  City  of  New  York  v.  The  Second  Avenue  Railw.,  32  N. 
Y.  Repts.  261  ;  s.  c.  34  Barb.  41,  where  the  case  was  similarly  ruled. 


§  61.        OBTAINING  LANDS  BY  EXPRESS  CONSENT.         223 

corporations,  as  to  their  rights  and  powers  over  lands  owned  by 
the  corporation,  were  to  be  viewed  the  same  as  any  other  owner 
of  land,  and  that  their  acts  and  resolutions  in  regard  to  the  use 
of  such  lands  by  others  were  not  to  be  regarded  as  either  of  a 
legislative  or  governmental  character ;  and  that  although  such 
corporations  have  no  power  as  a  party  to  make  contracts  which 
shall  control  or  embarrass  their  legislative  powers  and  duties, 
yet,  as  these  legislative  duties,  or  powers,  only  extend  to  regula- 
tions of  police  and  internal  government,  and  not  to  the  mere 
imposition  of  a  sum  of  money  for  revenue  purposes,  consequently 
an  ordinance  imposing  a  license  duty  upon  city  cars,  for  revenue 
purposes  only,  is  not  an  ordinance  for  police  and  internal  gov- 
ernment, and  the  imposition  of  an  annual  tax  upon  a  city  pas- 
senger railway,  in  derogation  of  its  rights,  as  defined  by  a  spe- 
cific agreement  between  the  city  and  the  railway  company,  for 
purpose  of  revenue  merely,  is  unlawful  and  void.15 

15  The  terms  of  this  contract  appear  more  fully  where  the  case  is  reported  in 
Barbour.  It  prescribed  the  regulations  to  which  the  company  should  be  liable, 
requiring  no  further  license,  and  reserving  no  power  to  require  one  thereafter. 
This  was  held  to  preclude  the  city  authority  from  making  the  imposition  de- 
manded. It  would  seem,  the  case  might  have  been  decided,  in  conformity  with 
the  dissenting  opinion  of  Mr.  Justice  Ingraham,  in  the  court  below,  without  any 
great  violence  to  principle.  See  also  Branson  v.  Philadelphia,  47  Penn.  St.  329; 
Veazie  v.  Mayo,  45  Me.  R.  560 ;  People  v.  New  York  &  Harlem  R.  Co.,  45 
Barb.  73  ;  Vilas  v.  Mil.  &  Miss.  R.  Co.,  15  Wise.  R.  233.  A  grant  of  land  to 
the  use  of  a  highway  seems  to  be  regarded  as  giving  the  municipal  authorities 
the  same  rights  in  regard  to  its  use  as  where  the  land  is  condemned  for  that  pur- 
pose.   Murphy  v.  The  City  of  Chicago,  29  111.  R.  279. 

The  grant  to  a  railway  company  of  a  right  to  build  a  tunnel  will  not  preclude 
the  owner  of  the  land  from  digging  minerals  under  the  tunnel,  in  conformity  with 
the  general  railway  acts,  London  &  N.  W.  Railw.  Co.  v.  Ackroyd,  8  Jur.  N. 
S.  911. 


224 


RIGHT    OF   WAY   BY    GRANT. 


§62. 


SECTION    II. 


Specific  Performance  in  Equity. 


1 .  Contracts  before  and  after  date  of  charter. 

2.  Contracts  where  all  the  terms  not  defined. 

3.  Contracts  for  land,  umpire  to  fix  price. 

4.  Where  mandamus  also  lies. 

5.  Contracts  not  signed  by  company. 

6.  Where  terms  are  uncertain. 

7.  Contracts  (jiving  the  company  an  option. 

8.  Contracts  not  understood  by  both  parties. 


9.  Order  in  regard  to  construction  of  high- 
ways may  be  enforced  at  the  suit  of  the 
municipality. 

10.  Tlie  courts  sometimes  decline  to  decree  spe- 

cific  performance  on  the  ground  of  pub- 
lic convenience. 

11.  No  decree  of  specific  performance  when 

contract  vague  and  uncertain. 


§  62.  1.  There  can  be  no  doubt  courts  of  equity  will  decree 
specific  performance  of  contracts  for  land,  made  by  consent  of 
the  owners,  as  well  after  the  act  of  parliament  as  before.1 

2.  If  the  agreement  contains  provisions  for  farm-crossings, 
fences,  and  cattle-guards,  either  express  or  implied,  the  master 
will  be  directed  to  make  the  proper  inquiry,  and  any  decree  for 
specific  performance  should  provide  minutely  for  all  such  inci- 
dents.2 But,  upon  general  principles,  if  the  agreement  provide 
that  the  price  of  land  is  to  be  fixed  by  an  arbitrator  or  umpire, 
it  has  generally  been  held  that  a  suit  for  specific  performance 
is  not  maintainable.3 

3.  But  if  the  arbitrator  have  acted  and  fixed  the  price,4  and  by 
parity  of  reason,  if  the  umpire  is  named,  and  ready  to  act,  there 
*  being  no  power  of  revocation,  a  court  of  equity  may  decree  spe- 
cific performance.  Hence  in  the  case  above,1  the  Vice-Chancel- 
lor held,  that,  as  the  contract  was  to  take  the  land  on  the  terms 
prescribed  in  the  act  of  parliament,  the  court  had  the  means  of 
applying  those  terms,  so  as  to  get  at  the  price,  and  might  there- 

1  Ante,  §  13,  et.  seq ;  Walker  v.  The  Eastern  Counties  Railw.  Co.,  5  Kailw. 
C.  469;  s.  c.  6  Hare,  594. 

2  Sanderson  v.  Cockermouth  &  "Washington  Railw.  Co.,  19  Law  Jour.  Ch. 
503  ;  11  Beavan,  497. 

3  Milnes  v.  Gerry,  14  Vesey,  400.  But  in  this  case  the  umpire  was  not  agreed 
upon,  and  the  court  held  they  could  not  appoint  one.  But  the  Master  of  the 
Rolls  held  that  an  agreement  to  sell,  at  a  fair  valuation,  may  be  executed.  See 
Tillet  v.  Charing  Cross  Company,  5  Jur.  X.  S.  994. 

4  Brown  v.  Bellows,  4  Pick.  179. 

*108 


§  62.  SPECIFIC   PERFORMANCE   IN   EQUITY.  225 

fore  require  the  party  to  put  them  in  motion,  and  then,  in  its 
discretion,  decree  specific  performance. 

4.  And  the  consideration,  that  possibly  the  party  might  pro- 
ceed by  mandamus,  will  not  deprive  him  of  this  remedy  in 
equity,  unless  the  act  specially  provides  the  remedy  by  man- 
damus.5 

5.  But  if  the  company  take  a  bond  of  a  land-owner,  to  convey 
so  much  land  as  they  shall  require,  and  subsequently  appropriate 
the  land,  but  decline  accepting  a  deed  and  paying  the  price, 
equity  will  not  decree  specific  performance  of  the  contract,  the 
bond  not  being  signed  by  the  company.6  But  in  such  a  case 
specific  performance  will  be  decreed  against  the  party  signing 
the  bond  upon  refusal.7 

6.  A  contract  to  sell  a  railway  company  "  the  land  they  take  " 
from  a  specified  lot  of  land,  at  twenty  cents  a  foot,  "  for  each 
and  every  foot  so  taken  by  said  company,"  imports  a  taking  by 
the  company,  under  their  compulsory  powers,  and  will  not  be 
specifically  enforced  until  so  taken  by  the  company.  And  if 
the  terms  of  a  contract  are  doubtful,  a  court  of  equity  will  not 
decree  specific  performance.8 

7.  Where  one  contracts  with  a  railway  company,  under  seal, 
to  permit  them  to  construct  their  road  over  his  land,  in  either 
one  of  two  routes,  and  to  convey  the  land  after  the  road  shall 
be  definitively  located,  with  a  condition  that  the  deed  shall  be 
void,  when  the  road  shall  cease,  or  be  discontinued,  if  the  com- 
pany take  the  land  and  build  their  road  upon  it,  specific  perform- 
ance will  be  decreed,  although  the  company  did  not  expressly 
bind  themselves  to  *  take  the  land,  or  pay  for  it.  And  where  the 
company  had  been  in  the  use  of  the  land  for  their  road  three  or 

s  Hodges  on  Railways,  189. 

«  Jacobs  v.  Peterborough  &  Shirley  Railw.,  8  Cush.  223. 

7  Parker  v.  Perkins,  8  Cush.  318. 

8  Boston  &  Maine  Railw.  v.  Babcock,  3  Cush.  228  ;  s.  c.  1  Am.  Railw.  C.  561. 
But  under  a  contract  with  a  railway  company,  giving  them  all  the  land  they 
desired,  not  exceeding  four  poles  in  width,  upon  which  to  construct  their  road, 
"  provided  said  road  shall  not  run  farther  north  of  my  southwest  corner  than  ten 
feet,  and  not  farther  south  of  my  northeast  corner  than  140  feet,"  it  was  held 
the  company  had  a  right  to  66  feet  through  the  whole  land,  and  were  only  re- 
stricted in  relation  to  the  distance  the  road  went  from  the  corners  name 
Lexington  &  Ohio  Railw.  v.  Ormsby,  7  Dana,  276. 

VOL.  i.  15  *  109 


226  RIGHT    OF    WAY    BY    GRANTS.  §  62. 

four  years,  it  was  held  no  such  unreasonable  delay  as  to  bar  the 
relief  sought.  The  party  cannot  excuse  himself  by  showing,  that, 
from  his  own  notions,  or  the  representations  of  the  company,  or 
of  third  persons,  he  was  induced  to  believe  that  a  different  route 
would  have  been  adopted  by  the  company,  or  that  there  was  an 
inadequacy  in  the  price  stipulated,  unless  it  be  so  gross  as  to 
amount  to  presumptive  evidence  of  fraud  or  mistake.9 

8.  But  it  is  a  good  defence,  in  such  case,  that  the  party  was 
led  into  a  mistake,  without  any  gross  laches  on  his  part,  by  an 
uncertainty  or  obscurity  in  the  descriptive  part  of  the  agree- 
ment, so  that  it  applied  to  a  different  subject-matter  from  that 
which  he  understood  at  the  time,  or  that  the  bargain  was  hard, 
unequal,  or  oppressive,  and  would  operate  in  a  manner  different 
from  that  which  was  in  the  contemplation  of  the  parties  when  it 
was  executed.  But  in  such  case  the  burden  of  proof  is  upon 
the  defendant,  to  show  mistake  or  misrepresentation.3 

In  a  recent  English  case 10  before  the  Court  of  Chancery  Ap- 
peal, after  elaborate  argument,  the  Lord  Justice  Knight  Bruce, 
an  equity  judge  of  the  most  extended  learning  and  experience,, 
thus  states  the  rule  upon  this  point.  This  court  will  not  enforce 
specific  performance  of  a  contract,  where  the  defendant  proves 
that  he  understood  it  in  a  sense  different  from  the  plaintiff,  even 
although  the  plaintiff's  construction  may  be  the  plain  meaning 
of  the  contract. 

9.  Where  the  county  commissioners  made  order  in  regard  to 
the  mode  of  construction  of  a  railway,  in  crossing  a  highway,  it 
was  held,  that  the  mayor  and  aldermen  of  a  city,  or  the  select- 
men of  a  town,  are  the  only  proper  parties  to  a  bill  for  specific 
performance,  and  that  the  land-owners,  over  which  the  railway 

J  Western  Railw.  v.  Babcock,  6  Met.  346  ;  s.  c.  1  Am.  Railw.  C.  365.  The  de- 
livery of  a  deed  to  the  agent  of  a  corporation,  in  such  case,  is  sufficient.  And 
where  the  party,  in  disregard  of  his  contract,  had  obtained  an  assessment  of 
damages  for  the  land,  under  the  statute,  his  liability  upon  the  contract  is,  to  the 
difference  between  the  apprisal  and  the  stipulated  price  in  the  contract. 

Unreasonable  delay  is  ordinarily  a  bar  to  specific  performance  in  a  court  of 
equity.  Guest  v.  Homfray,  5  Vesey,  818 ;  Hertford  v.  Boore,  Aston  v.  Same,  5 
Vesey,  719  ;  AVatson  v.  Reid,  1  Russ.  &  My.  236  ;  2  Story's  Eq.  Jur.  §§  771,  777, 
and  cases  cited. 

10  Wycombe  Railw.  Co.  v.  Donnington  Hospital,  12  Jur.  N.  S.  347. 


§  62.  SPECIFIC   PERFORMANCE  IN   EQUITY.  227 

passes,  are  not  to  be  joined  in  the  bill.11  But  where  the  order 
required  the  highway  *  to  be  so  raised  as  to  pass  over  the  rail- 
way, at  a  place  named,  but  without  denning  the  height  to  which 

11  Brainard  v.  Conn.  River  Railw.,  7  Cusb.  50G.  In  Roxbury  v.  Boston  & 
Prov.  Railw.,  6  Cusb.  424,  it  was  also  beld  the  commissioners  must  make  sucb 
order  specific,  and  not  in  the  alternative,  and  that  laches,  in  regard  to  such  or- 
der, will  not  defeat  the  claim  for  a  decree  for  specific  performance,  where  pub- 
lic security  is  essentially  concerned. 

And  courts  of  equity  have  held  a  parol  license  to  erect  public  works,  and  the 
works  erected  in  faith  of  it,  irrevocable,  and  the  company  entitled  to  hold  the 
land  upon  making  compensation,  and  have  virtually  decreed  specific  perform- 
ance. Water  Power  Co.  v.  Chamber,  1  Stockton,  Ch.  471.  See  also  Hall  v. 
Chaffee,  13  Vt.  R.  150;  Boston  &  Maine  Railw.  v.  Bartlett,  3  Cush.  224. 
But  it  was  held  that  an  action  for  the  price  of  land,  will  not  lie  upon  a  parol 
contract  of  sale,  where  there  had  been  no  conveyance  of  the  land,  although  the 
company  had  taken  possession  and  paid  part  of  the  price.  Reynolds  v.  Dunkirk 
&  State  Line  Railw.,  17  Barb.  612.  This  is  undoubtedly  according  to  the 
generally  recognized  rule  upon  the  subject,  in  those  states  where  the  Statute  of 
Frauds  is  in  force. 

In  the  recent  case  of  Laird  v.  Birkenhead  Railw.,  6  Jur.  N.  S.  140 ;  s.  c.  1 
Johns.  Eng.  Ch.  500,  the  question  of  an  estoppel  in  fact  becoming  so  fixed  upon 
a  railway  company  by  acquiescence  as  to  be  enforced  by  a  court  of  equity,  is 
largely  discussed  by  Vice  Chancellor  Wood,  and  placed  upon  higher  and  sounder 
grounds,  as  it  seems  to  us,  than  in  most  of  the  earlier  cases.  The  leading  facts 
were,  that  the  plaintiff,  by  agreement  with  the  company,  without  writing,  had 
built  a  tunnel  through  their  land,  in  order  to  facilitate  access  to  his  own  busi- 
ness, and  had  laid  rails  upon  the  work,  and  had  been  in  the  use  of  the  same  for 
two  years,  paying  tolls  as  agreed  between  the  parties.  The  company  now 
claimed  that  the  plaintiff  was  merely  a  tenant  at  will,  and  subject  to  their  ab- 
solute dictation  as  to  the  right  to  use  and  the  terms  upon  which  he  could  use 
the  works,  and  gave  notice  in  writing  of  the  immediate  and  absolute  termination 
of  the  contract,  and  in  pursuance  of  such  notice  removed  the  rails  and  perma- 
nently erected  a  board  across  the  passage. 

The  learned  judge  overruled  the  demurrer,  and  said  "  it  must  be  inferred,  from 
the  nature  of  the  transaction,  and  after  all  this  expense,  that  it  was  not  to  be 

determined  by  three  months'  notice The  necessary  inference  is,  that  it  is 

to  be  the  right  of  user,  as  long  as  the  plaintiff  is  the  owner  of  the  yard,  and  it 
would   be  a  most  unreasonable  proposition   to  say  that  the   company  should 

have  the  power  of  determining  it  at  three  months'  notice I  consider  that 

a  contract  has  been  made  out  upon  the  face  of  the  bill,"  and  it  was  further  con- 
sidered, that,  aside  from  the  actual  use,  a  court  of  equity  would  have  decreed 
specific  performance  upon  reasonable  terms ;  but  after  the  use  for  a  consider- 
able term  on  the  basis  of  an  unsigned  memorandum,  the  court  will  regard  that  as 
evidence  of  the  ultimate  agreement  of  the  parties.  S.  P.  Mold  v.  Wheatcroft, 
27  Beav.  510. 

*  110 


228  EIGHT   OF  WAY   BY   GRANT.  §  62. 

it  should  be  raised,  the  grade,  the  nature  of  the  structure,  or  the 
time  within  which  it  should  be  made,  it  was  held  too  indefinite 
to  justify  a  decree  for  specific  performance.12 

10.  The  Master  of  the  Rolls,  Lord  Romilly,  in  Raphael  v.  The 
Thames  Valley  Railway,13  held,  that  in  deciding  whether  specific 
performance  should  be  enforced  against  a  railway  company,  the 
court  must  have  regard  to  the  interests  of  the  public,  and  there- 
fore, when  a  bridge  had  not  been  constructed  in  conformity  with 
an  agreement  with  a  land-owner,  but  the  injury  to  the  land- 
owner was  small,  and  the  railway  had  since  been  opened  for  traf- 
fic, and  the  relief,  if  granted,  would  have  necessitated  an  inter- 
ference with  the  traffic,  the  court  refused  to  compel  specific  per- 
formance. 

11.  And  it  has  been  very  recently  declared  by  the  English 
courts  of  equity,  that  where  a  contract  is  vague  and  so  uncer- 
tain that  no  compensation  could  be  awarded,  a  decree  for  spe- 
cific performance  could  not  be  made.14 

a  City  of  Roxbury  v.  Boston  &  Providence  Railw.,  2  Gray,  460. 

13  12  Jur.  N.  S.  656. 

14  Tillett  v.  Charing  Cross  Co.,  5  Jur.  N.  S.  994. 


§63. 


GENERAL   PRINCIPLES. 


229 


♦CHAPTER    XI 


EMINENT   DOMAIN. 


SECTION    I. 


General  Principles. 


1.  Definition  of  the  right. 

2.  Intercommunication. 

3.  Necessary  attribute  of  sovereignty. 

4.  Antiquity  of  its  recognition. 

5.  Limitations  upon  its  exercise. 


6.  Resides  principally  in  the  states. 

7.  Duty  of  making  compensation. 

8.  Navigable  waters. 

9.  10,  11.  Its  exercise  in  rivers,  above  tide- 

water. 


§  63.  1.  This  title  is  very  little  found  in  the  English  books, 
and  scarcely  in  the  English  dictionaries.  But  with  us,  it  has 
been  adopted  from  the  writers  on  national  and  civil  law,  upon 
the  continent  of  Europe,1  and  is  perhaps  better  understood  than 
almost  any  other  form  of  expression,  for  the  same  idea.  It  is 
defined  to  be  that  dominium  eminens,  or  superior  right,  which  of 
necessity  resides  in  the  sovereign  power,  in  all  governments,  to 
apply  private  property  to  public  use,  in  those  great  public  emer- 
gencies which  can  reasonably  be  met  in  no  other  way. 

2.  It  is  a  distinct  right  from  that  of  public  domain,  which  is 
the  land  belonging  to  the  sovereign.  This  is  a  superior  right 
which  the  sovereign  possesses  in  all  property  of  the  citizen  or 
subject,  whether  real  or  personal,  and  whether  the  title  were 
originally  derived  from  the  sovereign  or  not.  One  of  the  chief 
occasions  for  the  exercise  of  this  right  is,  in  creating  the  neces- 
sary facilities  for  intercommunication,  which  in  this  country  is 
now  very  generally  known  by  the  name  of  Internal  Improve- 
ment. This  extends  to  the  construction  of  highways  (of  which 
turnpikes  and  railways  are,  in  some  respects,  but  different  modes 
of  construction  and  maintenance),  canals,  ferries,  wharves, 
basins,  and  some  others.2 

1  Vattel,  B.  1,  ch.  20,  §  244  ;  Code  Napoleon,  B.  2,  tit.  2,  545  ;    1  Black. 
Comm.  139  ;  Gardner  v.  Newburgh,  2  Johns.  Ch.  162  ;  2  Dallas,  310. 
s  3  Kent,  Comm.  339  el  seq.  and  notes ;  Beekman  v.  Saratoga  &  Sch.  Railw., 

*  111 


230  EMINENT   DOMAIN.  §  63. 

*  3.  This  is  a  right  in  the  sovereignty,  which  seems  indispen- 
sable to  the  maintenance  of  civil  government,  and  which  seems 
to  be  rather  a  necessary  attribute  of  the  sovereign  power  in  a 
state,  than  any  reserved  right  in  the  grant  of  property  to  the  sub- 
ject or  citizen. 

4.  It  seems  to  have  been  accurately  denned,  and  distinctly 
recognized,  in  the  Roman  empire,  in  the  days  of  Augustus,  and 
his  immediate  successors,  although  from  considerations  of  policy 

3  Paige,  45,  73  ;  12  Pick.  467  ;  23  Id.  327  ;  3  Selden,  314.  This  right,  as 
some  of  the  above  cases  show,  extends  to  numerous  matters  not  named  in  the 
text.  It  would  be  out  of  place  here  to  enter  into  the  discussion  of  the  general 
subject.  The  indispensable  prerequisites  to  the  exercise  of  the  right  will  ap- 
pear, as  far  as  they  apply  to  the  subject,  in  the  following  sections. 

That  railways  are  but  improved  highways,  and  are  of  such  public  use  as  to 
justify  the  exercise  of  the  right  of  eminent  domain,  by  the  sovereign,  in  their 
construction,  is  now  almost  universally  conceded.  Williams  v.  N.  Y.  Central 
Railw.,  18  Barb.  222,  246  ;  State  v.  Rives,  5  Ired.  29  7  ;  Northern  Railw.  v. 
Concord  &  Claremont  Railw.,  7  Foster,  183  ;  Bloodgood  v.  M.  &  H.  Railw.,  18 
Wend.  9 ;  s.  c.  14  Wendell,  51  ;  1  Bald.  C.  C.  Reports,  205.  See  also  3  Paige, 
73;  3  Seld.  314. 

It  seems  to  be  well  settled,  that  the  legislature  have  no  power  to  take  the 
property  of  the  citizens  for  any  but  a  public  use  ;  but  that  a  railway  is  such  use. 
Bradley  v.  N.  Y.  &  N.  H.  Railw.,  21  Conn.  R.  294;  Symonds  v.  The  City  of 
Cincinnati,  14  Ohio  R.  147;  Embury  v.  Conner,  3  Comst.  511. 

But  this  is  a  power  essentially  different  from  that  of  taxation,  in  regard  to 
which  there  is  no  constitutional  restriction,  and  no  guaranty  for  its  just  exercise, 
except  in  the  discretion  of  the  legislature.     The  People  v.  Mayor  of  Brooklyn, 

4  Comst.  419  ;  Cincinnati,  W.  &  Z.  Railw.  v.  Clinton  Co.  Comm.  1  Ohio  N.  S. 
77. 

The  legislature  must  decide,  in  the  first  instance,  when  the  right  of  eminent 
domain  may  be  exercised,  but  this  is  subject  to  the  revision  of  the  courts,  so  far 
as  the  uses  to  which  the  property  is  applied,  are  concerned.  2  Kent,  Comm. 
340. 

But  as  to  the  particular  instance,  the  decision  of  the  legislature,  and  of  the 
commissioners  appointed  to  exercise  the  power,  is  ordinarily  final  and  not  revis- 
able  in  the  courts  of  law.  Varrick  v.  Smith,  5  Paige,  137  ;  Armington  v.  Bar- 
net,  15  Vt.  R.  745. 

And  the  legislature  may  restrain  the  owners  of  property,  in  its  use,  when  in 
their  opinion  the  public  good  requires  it,  without  compensation,  as  this  is  not  the 
exercise  of  the  right  of  eminent  domain.  Commonwealth  v.  Tewksbury,  11 
Met.  55  ;  Coates  v.  Mayor  of  New  York,  7  Cowen,  585.  But  see  Clark  v. 
Mayor  of  Syracuse,  13  Barb.  32. 

The  following  case  recognizes  the  general  right  stated  in  the  text.     Donnaher 
v.  The  State,  8  Sin.  &  M.  649. 
*  112 


§  63.  GENERAL   PRINCIPLES.  231 

and  personal  influence  and  esteem,  they  did  not  always  choose 
to  exercise  the  right,  to  demolish  the  dwellings  of  the  inhabit- 
ants, either  in  the  construction  of  public  roads  or  aqueducts, 
or  ornamental  columns,  but  to  purchase  the  right  of  way. 

5.  But  in  the  states  of  Europe 3  and  in  the  written  constitu- 
tion *  of  the  United  States,  and  in  those  of  most  of  the  American 
states,  an  express  limitation  of  the  exercise  of  the  right  makes 
it  dependent  upon  compensation  to  the  owner.  But  this  pro- 
vision in  the  United  States  constitution  is  intended  only  as  a 
limitation  upon  the  exercise  of  that  power,  by  the  government 
of  the  United  States.3 

6.  And  it  would  seem,  that  notwithstanding  this  right  of  sov- 
ereignty may  reside  in  the  United  States,  as  the  paramount  sov- 
ereign, so  far  as  the  territories  are  concerned,  in  reference  to 
internal  communication,  by  highways  and  railways,  and  notwith- 
standing the  ownership  of  the  soil  of  a  portion  of  the  lands,  by 
the  United  States,  in  many  of  the  states,  as  well  as  territories, 
still,  when  any  of  the  territories  are  admitted  into  the  Union,  as 
independent  states,  the  general  rights  of  eminent  domain  are 
vested  exclusively  in  the  state  sovereignty.4 

7.  The  duty  to  make  compensation  for  property,  taken  for  pub- 
lic use,  is  regarded,  by  the  most  enlightened  jurists,  as  founded 
in  the  fundamental  principles  of  natural  right  and  justice,  and 
as  lying  at  the  basis  of  all  wise  and  just  government,  indepen- 
dent of  all  written  constitutions  or  positive  law.5 

3  Barron  v.  Baltimore,  7  Peters,  243  ;  Fox  v.  The  State  of  Ohio,  5  How.  410, 
434,  435. 

4  Pollard  87.  Hagan,  3  How.  212;  Goodtitle  v.  Kibbe,  9  How.  471  ;  Doe  v. 
Beebe,  13  How.  25  ;  United  States  v.  Railw.  Bridge  Co.,  6  McLean,  517.  In 
the  Court  of  Claims  recently,  in  the  case  of  The  Illinois  Central  Railw.  v. 
United  States,  20  Law  Rep.  630,  it  was  held,  that  the  abandonment  of  a  military 
reserve,  which  had  become  useless  for  military  purposes,  causes  it  to  fall  back 
into  the  general  mass  of  public  lands,  and  that  a  state,  by  virtue  of  its  right  of 
eminent  domain,  may  authorize  the  construction  of  railways  through  land  owned 
but  not  occupied  by  the  United  States.  And  the  United  States  being  in  pos- 
session of  land  owned  by  the  plaintiffs,  and  which  was  necessary  to  carry  out  the 
objects  of  their  charter,  it  was  held,  that  a  payment  made  by  the  plaintiffs,  to  ob- 
tain possession  thereof,  was  made  under  duress,  and  might  be  recovered. 

s  Spencer,  Ch.  J.,  in  Bradshaw  v.  Rogers,  20  Johns.  103  ;  2  Kent,  Comm.  339, 
and  note  and  cases  cited,  from  the  leading  continental  jurists. 

*  113 


232  EMINENT   DOMAIN.  §  63. 

8.  But  the  public  have  a  right,  by  the  legislature,  through  the 
proper  functionaries,  to  regulate  the  use  of  navigable  waters,  and 
the  erection  of  a  bridge,  with  or  without  a  draw,  by  the  authority 
of  the  legislature,  is  the  regulation  of  a  public  right,  and  not  the 
deprivation  of  a  private  right,  which  can  be  made  the  ground  of 
an  action,  even  where  private  loss  is  thereby  produced,  nor  is  it 
the  taking  of  private  property  for  public  use  which  will  entitle 
the  owner  to  compensation.0 

9.  And  where  a  ford-way  was  destroyed,  by  the  erection  of  a 
dam  across  a  river,  in  the  construction  of  a  canal,  or  other  public 
work,  under  legislative  grant,  the  river  being  a  public  highway, 
although  *  not  strictly  navigable,  in  the  common-law  sense,  (which 
only  included  such  rivers,  as  were  affected  by  tide-water,)  it  was 
held  the  owner  of  the  ford-way  could  recover  no  compensation 
from  the  state,  or  their  grantees,  the  act  being  but  a  reasonable 
exercise  of  the  right  to  improve  the  navigation  of  the  stream,  as 
a  public  highway." 

10.  Neither  can  the  owner  of  a  fishery,  which  sustains  dam- 
age or  destruction  by  the  building  of  a  dam- to  improve  the 
navigation  of  a  river  above  tide-water,  under  grant  from  the 
state,  sustain  an  action  against  the  grantees.8  So  also  in  regard 
to  the  loss  of  the  use  of  a  spring,  by  deepening  the  channel  of 
such  a  stream,  by  legislative  grant.9 

11.  Nor  is  the  owner  of  a  dam,  erected  by  legislative  grant 
upon  a  navigable  river,  and  which  was  afterwards  cut  off  by  a 
canal,  granted  by  the  same  authority,  entitled  to  recover  dam- 
ages.10 

6  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91 ;  Gould  v.  Hudson  River 
Railw.,  12  Barb.  616  ;  s.  c.  2  Selden,  522.  Nor  have  the  state  any  such 
right  in  flats,  where  the  tide  ebbs  and  flows,  as  to  require  a  railway  company  to 
pay  them  damages  for  the  right  of  passage.  Walker  v.  Boston  &  Maine  Railw., 
3  Cush.  1  ;  s.  c.  1  Am.  Railw.  C.  462. 

7  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346. 

8  Shrunk  v.  Schuylkill  Navigation  Co.,  14  Serg.  &  Rawle,  71. 

9  Commonwealth  v.  Ritcher,  1  Penn.  R.  467. 

10  Susquehannah  Canal  Co.  v.  Wright,  9  Watts  &  Serg.  9 ;  Monongahela 
Navigation  Co.  v.  Coons,  6  Id.  10J. 

*  114 


§64. 


TAKING   LANDS   IN   INVITUM. 


233 


SECTION    II. 


Taking  Lands  in  invitum. 


1 .  Legislative  grant  requisite. 

2.  Compensation  must  be  made. 

3.  Consequential  damages. 

4.  Extent  of  such  liability. 

5.  77ic.se  grants  strictly  construed. 

6.  Limitation  of  the  power  to  take  lands. 


7.  Interference  of  courts  of  equity. 

8.  Rule  of  construction  in  American  courts. 

9.  Strict,  but  reasonable  construction. 

1 0.  Rights  acquired  by  company. 

1 1 .  Limited  by  the  grant. 

1 2.  Late  decision  of  the  House  of  Lords. 


§  64.  1.  In  England  railways  can  take  lands  by  compulsion, 
only  in  conformity  to  the  terms  of  their  charters,  and  the  gen- 
eral laws  denning  their  powers.1  And  in  this  country  a  railway 
company  or  other  corporation  must  show,  not  only  the  express 
warrant  of  the  legislature 2  (which  it  must  for  all  its  acts)  for 
taking  *  the  land  of  others  for  their  own  uses,  but  also  that  the 
legislature,  in  giving  such  warrant,  conformed  to  the  constitu- 
tions of  the  states,  in  most  of  which  it  is  expressly  required  that 
compensation  should  be  made  for  all  lands  taken.  And  upon 
this  subject,  the  circumspection  of  the  English  courts,  in  requir- 
ing damage  and  loss  to  the  land-owners  to  be  fairly  met,  is 
shown  very  fully  by  the  language  of  Lord  Denman,  Ch.  J.,  in 
The  Queen  v.  The  Eastern  Counties  Railway.3 

1  Taylor  v.  Clemson,  3  Railw.  C.  65.  Tindal,  Ch.  J.,  here  said,  "  This  au- 
thority to  take  land,  if  exercised  adversely,  and  not  by  consent,  is  undoubtedly 
an  authority  to  be  carried  into  effect,  by  means  unknown  to  the  common  law." 
And  in  Barnard  v.  Wallis,  2  Railw.  C.  177,  the  Master  of  the  Rolls  declares, 
that  aside  from  the  provisions  of  the  act  of  parliament,  the  owner  of  one  rod  of 
land  may  insist  upon  his  own  terms,  to  the  utter  overthrow  of  the  most  impor- 
tant public  work.  "  The  price  of  his  consent  must  be  Determined  by  himself." 
All  kinds  of  property  and  estate  are  subject  to  this  right  of  eminent  domain, 
and  a  dwelling-house,  so  long  regarded  as  the  inviolable  sanctuary  of  the  owner 
or  occupant,  forms  no  exception.  Wells  v.  Som.  &  Ken.  Railw.  Co.,  47  Me.  R. 
345. 

2  Hickok  v.  Pittsburgh,  15  Barb.  435;  4  Barb.  127;  Halstead  v.  Mayor,  &c. 
of  New  York,  3  Comst.  430;  Hart  v.  Mayor  of  Albany,  9  Wend.  571,  588;  2 
Denio,  110;  Dunham  v.  Trustees  of  Rochester,  5  Cowen,  462. 

3  2  Railw.  C.  736,  752.  It  has  been  repeatedly  decided  that  the  corporate 
authorities  of  a  city  have  no  power  to  confer  upon  any  person,  natural  or  cor- 
porate, the  franchise  of  operating  a  railway.     Such  a  grant  for  an  indefinite 

*llo 


234  EMINENT   DOMAIN.  §  64. 

2.  "  Wc  think  it  not  unfit  to  premise,  that  when  such  large 
powers  are  intrusted  to  a  company  to  carry  their  works  into 
execution,  without  the  consent  of  the  owners  and  occupiers  of 
the  land,  it  is  reasonable  and  just  that  any  injury  to  property 
which  can  be  shown  to  arise  from  the  prosecution  of  those  works 
should  be  fairly  compensated  for  to  the  party  sustaining  it." 

3.  In  the  English  statute,  too,  railway  companies  are  made 
liable  to  pay  damage  to  the  owner  of  all  lands  "  injuriously  af- 
fected "  by  any  of  their  works.  Such  a  provision  does  not  exist 
in  many  of  the  American  states,  and  consequently  no  liability 
is  imposed  for  merely  consequential  damages  to  lands,  no  part 
of  which  is  taken.4 

4.  Under  the  English  statute,  giving  damage  where  lands  are 
"  injuriously  affected,"  railways  have  been  held  liable  for  all 
acts,  which,  if  done  without  legislative  grant,  would  constitute 
a  nuisance,  and  by  which  a  particular  party  incurs  special  dam- 
age.5 

5.  These  grants,  being  in  derogation  of  common  right,  are  to 
receive  a  reasonably  strict  and   guarded   construction.6     The 

period  is  void  as  a  perpetuity.  Such  powers  are  held  by  the  city  for  the  public 
benefit,  and  cannot  be  abrogated  or  delegated.  And  such  a  grant  being  not  an 
act  of  municipal  legislation  merely,  but  a  contract  which,  if  valid,  it  could  not 
revoke  or  limit,  and  which  is  consequently  void  as  a  perpetuity.  Milhau  v. 
Sharp,  27  N.  Y.  R.  611 ;  post,  §  76,  p.  54  7. 

4  Hatch  v.  Vermont  Central  Railw.,  25  Vt.  R.  49  ;  Philadelphia  &  Trenton 
Railw.,  6  Whart.  25;  Monongahela  Nav.  Co.  v.  Coon,  6  Watts  &  Serg.  101. 
See  also  Protzman  v.  Ind.  &  Cin.  Railw.,  9  Ind.  R.  467;  Evansville  &  Craw- 
fordsville  Railw.  v.  Dick,  Id.  433. 

5  Queen  v.  Eastern  Co.'s  Railw.,  2  Q.  B.  347;  Glover  v.  North  Stafford- 
shire Railw.,  5  Eng.  L.  &  Eq.  335. 

6  Gray  v.  Liverpool  &  Bury  Railw.,  4  Railw.  C.  235  -  240.  Hence  under  a 
general  grant  of  power  to  take  land  for  the  track  of  a  railway,  with  sidings  and 
branches  to  the  towns  along  the  line,  the  company  have  no  power  to  take  land 
for  a  temporary  track  during  the  period  of  constructing  the  main  line.  Currier 
v.  Marietta  &  Cin.  Railw.  Co.,  11  Ohio  N.  S.  228.  Nor  can  a  railway  compa- 
ny, under  their  general  powers,  take  lands  at  a  distance  from  their  line  not  in- 
tended to  be  used  in  its  construction.  Waldo  v.  Chicago,  St.  Paul  &  Fond  du 
Lac  Railw.  Co.,  14  Wise.  R.  575.  Nor  can  a  railway  company  take  land  com- 
pulsorily  for  the  purpose  of  erecting  a  manufactory  of  railway  cars,  or  dwell- 
ings to  be  rented  to  the  employes  of  the  company.  But  they  may  take  land  • 
for  the  purpose  of  storing  wood  and  lumber  used  on  the  road,  or  brought  there 


§  64.  TAKING   LANDS  IN  INVITUM.  235 

Master  of  the  Rolls,  in  this  last  case,  says,  "  In  these  cases  it  is 
always  to  be  borne  in  mind,  that  the  acts  of  parliament  are  acts 
of  sovereign  and  imperial  power,  operating  in  the  most  harsh 
shape  in  which  that  power  can  be  applied  in  civil  matters,  — 
solicited,  as  they  are,  by  individuals,  for  the  purpose  of  private 
speculation  and  individual  benefit."  And  in  another  case 7  the 
rule  of  construction  is  thus  laid  down  :  — 

*  6.  "  These  powers  extend  no  further  than  expressly  stated 
in  the  act,  except  where  they  are  necessarily  and  properly  ac- 
quired for  the  purposes  which  the  act  has  sanctioned."  This 
last  category,  as  here  observed,  is  often  a  most  perplexing  one, 
in  regard  to  its  true  extent  and  just  limits.  And  doubtful 
grants  are  to  be  construed  most  favorably  towards  those  who 
seek  to  defend  their  property  from  invasion.8  And  a  railway, 
having  an  option  between  different  routes,  can  only  take  lands 
on  that  route  which  they  ultimately  adopt ;  and  if  they  contract 
for  land  upon  the  other  routes,  cannot  be  compelled  to  take  it.9 
The  time  for  exercise  of  these  compulsory  powers,  by  the  Eng- 
lish statutes,  is  limited  to  three  years,10  except  for  improvements 

for  transportation  upon  it.  And  when  land  is  taken  for  a  legitimate  purpose, 
the  decision  of  the  locating  officers  of  the  company  is  conclusive  as  to  the  ex- 
tent required  for  that  purpose,  unless  the  quantity  so  taken  is  clearly  beyond 
any  just  necessity.     Vt.  &  Canada  R.  v.  Vt.  Cent.  R.,  34  Vt.  R.  2. 

7  Colman  v.  The  Eastern  Counties  Railw.,  4  Railw.  C.  513,  524;  State  v.  B. 
&  O.  Railw.,  6  Gill.  363  ;  Simpson  v.  So.  Staff.  Waterworks  Co.,  11  Jur.  N.  S. 
453.  And  in  a  recent  case  in  Kentucky,  the  rule  is  thus  stated :  The  rules  of 
construction  which  apply  to  charters  delegating  sovereign  power  to  corporations 
do  not  depend  upon  the  question  whether  the  corporation  is  a  private  or  a  pub- 
lic one,  but  on  the  character  of  the  powers  conferred,  and  the  purposes  of  the 
organization.  The  power  of  a  railroad  or  other  private  corporation  to  take  pri- 
vate projierty  for  its  use,  being  a  delegation  of  sovereign  power,  must  be  con- 
strued as  it  would  be  if  delegated  to  a  municipal  corporation.  And  the  powers 
of  private  and  public  corporations,  with  respect  to  their  property,  are  governed 
by  the  same  principles,  and,  in  the  absence  of  express  provisions  of  law,  depend 
upon  the  purposes  for  which  the  corporation  was  formed.  Bardstown  &  Lou.  R. 
R.  Co.  v.  Metcalfe,  4  Met.  (Ky.)  199. 

8  Sparrow  v.  Oxford,  W.  and  W.  Railw.,  12  Eng.  L.  &  Eq.  249;  Shelford 
on  Railways,  233. 

9  Tomlinson  v.  Man.  &  Birm.  Railw.,  2  Railw.  C.  id?;  Webb  v.  Man.  & 
Leeds  Railw.,  1  Railw.  C.  576. 

10  Such  a  limitation  is  held  obligatory  wherever  it  exists.  Peavey  v.  Calais 
Railw.,  30  Maine  R.  498;  s.  c.  1  Am.  Railw.  C.  147. 

*116 


236  EMINENT   DOMAIN.  §  64. 

necessary  for  the  public  safety,  in  conformity  with  the  certificate 
of  the  Board  of  Trade. 

It  was  decided  by  the  House  of  Lords,  reversing  the  judgment 
of  the  Lords  Justices,  but  affirming  that  of  the  Vice-Chancellor, 
that  where  the  legislature  authorizes  a  railway  company  to  take, 
for  their  purposes,  any  lands  described  in  their  act,  it  constitutes 
them  the  sole  judges  as  to  whether  they  will  or  will  not  take 
those  lands,  provided  that  they  take  them  bond  fide,  with  the 
purpose  of  using  them  for  the  purposes  authorized  by  the  legis- 
lature, and  not  for  any  sinister  or  collateral  purposei1  And  that 
a  court  of  equity  cannot  interfere,  even  upon  the  decision  of 
an  engineer,  to  curtail  the  power  of  the  company,  in  regard 
to  the  quantity  of  land  sought  to  be  obtained  by  it,  so  long  as  it 
acts  in  good  faith.  But  in  a  later  case  12  it  was  said  that  the 
House  of  Lords,  in  the  case  of  Stockton  &  Co.  v.  Brown,  did  not 
decide  that  the  company,  by  its  engineer,  had  an  unlimited  dis- 
cretion to  take  any  land  which  the  engineer  would  make  affi- 
davit the  company  required  for  use  in  the  construction  of  their 
works,  without  stating  what  works ;  but  that  it  must  appear  to 
what  use  they  proposed  to  put  the  lands,  and  if  that  came  fairly 
within  the  range  of  their  powers,  the  company  could  not  be  con- 
trolled in  the  bond  fide  exercise  of  its  discretion  as  to  the  mode 
of  constructing  their  works,  within  the  powers  confided  to  them 
by  the  legislature.  The  company  will  not  be  restrained  from  tak- 
ing land  for  the  purpose  of  depositing  waste  upon,  although  not 
confident  of  requiring  it  for  any  other  purpose  connected  with 
the  construction.13 

7.  As  a  general  rule  in  the  English  courts  of  equity,  if  the 
construction  of  a  railway  charter  be  doubtful,  they  will  remit 
the  party  to  a  court  of  law  to  settle  the  right,  in  the  mean  time 
so  exercising  the  power  of  granting  temporary  injunctions  as 
will  best  conduce  to  the  preservation  of  the  ultimate  interests  of 
all  parties.14 

11  Stockton  &  Darlington  Railw.  Co.  v.  Brown,  6  Jur.  N.  S.  1168 ;  s.  c.  9  Ho.  L. 
C.  246  ;  North  Missouri  Railw.  v.  Lackland,  25  Mo.  R.  515 ;  Same  v.  Gott,  Id.  540. 

12  Flower  v.  Lond*wi  Br.  &  S.  Coast  Railw.  Co.,  11  Jur.  N.  S.  406. 

13  Lund  v.  Midland  Railw.  Co.,  34  L.  J.  Ch.  276. 

14  Clarence  Railw.  v.  Great  North  of  England,  C.  &  H.  J.  Railw.,  2  Railw. 
C.  763.  But  the  practice  of  courts  of  equity  in  this  respect,  is  by  no  means  uni- 
form.    See  post,  chap,  xxviii. 


§  64.  TAKING   LANDS  IN  INVITUM.  237 

8.  Similar  rules  of  construction  have  prevailed  in  the  courts 
of  this  country.  The  language  of  Ch.  J.  Taney,  in  the  leading 
case  upon  this  subject,  in  the  national  tribunal  of  last  resort,  is 
very  explicit.  "  It  would  present  a  singular  spectacle,  if,  while 
the  courts  of  England  are  restraining  within  the  strictest  limits 
the  spirit  of  monopoly  and  exclusive  privilege  in  nature  of  mo- 
nopoly, and  confining  corporations  to  the  privileges  plainly  given 
to  them  in  their  charter,  the  courts  of  this  country  should  be 
found  enlarging  these  privileges  by  implication." 15  And  in 
commenting  upon  the  former  decisions  of  that  court,  upon  this 
subject,  the  same  learned  judge  here  says,  "  the  .principle  is  rec- 
ognized, that  in  grants  by  the  public  nothing  passes  by  implica- 
tion." 16  And  other  cases  *  are  here  referred  to  in  the  same 
court,  in  support  of  the  same  view.17 

9.  But  it  is  not  to  be  inferred  that  the  courts  in  this  country, 
or  in  England,  intend  to  disregard  the  general  scope  and  purpose 
of  the  grant,  or  reasonable  implications,  resulting  from  attending 
circumstances.  But  if  doubts  still  remain,  they  are  to  be  solved 
against  the  powers  claimed.18 

15  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420. 
15  U.  S.  v.  Arredondo,  6  Pet.  691,  738. 

17  Jackson  v.  Lamphire,  3  Pet.  280;  Beaty  v.  Knowler,  4  Pet.  152, 168;  Prov- 
idence Bank  v.  Billings  &  Pittman,  4  Pet.  514.  And  that  court  not  only  ad- 
heres to  the  same  view  still,  but  may  have  carried  it,  in  some  instances,  to  the 
extreme  of  excluding  all  implied  powers.  See  also  upon  this  subject,  Common- 
wealth v.  Erie  &  Northeast  Railw.,  27  Penn.  St.  339;  and  Bradley  v.  New 
York  &  New  Haven  Railw.,  21  Conn.  R.  294. 

18  Perrine  v.  Ches.  &  Del.  Canal  Co.,  9  How.  172;  Enfield  Toll  Bridge  v. 
Hartford  &  N.  H.  Railw.,  17  Conn.  R.  454;  Springfield  v.  Conn.  River  Railw., 
4  Cush.  63;  30  Maine  R.  498;  9  Met.  553;  1  Zab.  442;  3  Zab.  510;  21  Penn. 
St.  9;  15  111.  R.  20. 

The  following  cases  will  be  found  to  confirm  the  general  views  of  the  text. 
Tuckahoe  Canal  Co.  v.  Tuckahoe  Railw.,  11  Leigh,  42;  Greenleaf's  Cruise, 
Vol.  2,  67,  68;  Thompson  v.  N.  Y.  &  H.  Railw.,  3  Sand.  Ch.  625;  Oswego 
Falls  Bridge  Co.  v.  Fish,  1  Barb.  Ch.  547;  Moorhead  v.  Little  Miami  Railw., 
17  Ohio  R.  340;  Stormfeltz  v.  Manor  Turnpike  Co.,  13  Penn.  St.  555;  Toledo 
Bank  v.  Bond,  1  Ohio  N.  S.  636;  Cincinnati  Coll.  v.  State,  17  Ohio  R.  110; 
Cam.  &  Amboy  R.  v.  Briggs,  2  Zab.  623;  Carr  v.  Georgia  Railw.  &  Banking 
Co.  1  Kelly,  524 ;  7  Ga.  R.  221 ;  New  London  v.  Brainard,  22  Conn.  R.  552 ; 
Bradley  v.  N.  Y.  &  N.  H.  Railw.,  21  Conn.  R.  294 ;  9  Ga.  R.  475 ;  Barrett  v. 
Stockton  &  D.  Railw.,  2  M.  &  G.  134. 

*  117 


238  EMINENT   DOMAIN.  §  G4 

10.  But  where  the  right  of  the  company  to  appropriate  the 
land  is  perfected  under  the  statute,  they  may  enter  upon  it 
without  any  process  for  that  purpose,  and  the  resistance  of  the 
owner  is  unlawful,  and  he  may  be  restrained  by  injunction,  but 
that  is  unnecessary.     The  statute  is  a  warrant  to  the  company.19 

11.  But  a  grant  to  a  railway  to  carry  passengers  and  mer- 
chandise from  A.  to  M.,  does  not  authorize  them  to  transport 
merchandise  from  their  depot  in  the  city  of  M.  about  the  city,  or 
to  other  points,  for  the  accommodation  of  customers.20 

12.  There  has  been  considerable  discussion  in  the  English 
courts,  within  the  last  few  years,  in  regard  to  many  recent  stat- 
utes there,  for  the  improvement  of  markets  and  streets  in  the 
metropolis  or  districts  adjoining,  through  the  agency  of  "the 
municipal  corporations.  And  while  the  courts  there,  and  espe- 
cially the  House  of  Lords,  in  a  very  recent  case,21  adhere  stren- 
uously to  the  former  rule,  in  regard  to  private  corporations,  that 
they  can  only  take  lands  compulsorily,  for  the  needful  purposes 
of  the  works  which  they  are  authorized  by  the  legislature  to  con- 
struct ;  on  the  other  hand,  they  hold  that  it  is  competent  and 
proper,  under  parliamentary  powers  granted  for  that  purpose, 
to  allow  municipal  corporations  to  reimburse  the  expense  of  any 
improvements  which  they  are  authorized  to  carry  forward,  in 
their  streets  and  squares  or  markets,  by  taking  the  lands  adjoin- 
ing such  improvements,  at  the  price  of  their  value  before  such 
improvements,  and  selling  them  at  the  advanced  prices  caused 
by  such  improvements.  And  it  was  held  that  the  municipality 
having,  before  the  act  passed,  contracted  for  the  sale  of  such 
of  the  lands  so  to  be  taken  as  they  should  not  require  for  the 
purpose  of  the  public  improvement,  did  not  disqualify  them  from 
exercising  the  discretion  reposed  in  them  by  the  act,  as  to  how 
much  land  they  would  take.  This  rule  of  law  in  regard  to  the 
proper  mode  of  reimbursing  the  expense  of  great  public  im- 
provements is  not  very  different  from  that  which  has  been  ex- 
tensively in  use  in  America  under  the  name  of  betterment  acts, 
whereby  the  expense  is  assessed  upon  the  adjoining  property 

19  Niagara  Falls  &  Lake  Ontario  Railw.  v.  Hotchkiss,  16  Barb.  270. 
50  Macon  v.  Macon  &  Western  Railw.,  7  Ga.  R.  221. 

81  Galloway  v.  The  Mayor  &  Commonalty  of  London  and  the  Metropolitan 
Railw.  Co.,  et  vice  versa,  12  Jur.  N.  S.  7-17.     (1866.) 


§G5. 


CONDITIONS   PRECEDENT. 


239 


owners,  upon  some  seheme  of  equalization,  presumptively  appor- 
tioning the  loss  and  benefit  equitably.22 


*SECTION    III. 
Conditions  Precedent. 


1 .  Conditions  precedent  must  be  complied  with. 

2.  That  must  be  alleged  in  petition. 

3.  When  title  vests  in  company. 

4.  Filing  the  location  in  the  land  office  is  no- 

tice, to  subsequent  purchasers. 

5.  After  damages  arc  assessed  and  confirmed 


by  the  court  the  owner  is  entitled  to  exe- 
cution. 

6.  If  the  company  use  the  land. 

7.  Subscriptions  payable  in  land  without  com- 

pensation, a  court  of  equity  will  enforce 
payment. 


§  65.  1.  It  has  been  held  that  a  railway  company  must  com- 
ply witli  all  the  conditions  in  its  charter,  or  the  general  laws  of 
the  state,  requisite  to  enable  it  to  go  forward  in  its  construction, 
before  it  acquires  any  right  to  take  land  by  compulsion.  In 
England  one  of  these  conditions  in  the  general  law  is,  that  stock, 
to  the  amount  of  the  estimated  cost  of  the  entire  work,  shall  be 
subscribed.  And  where  the  charter  or  the  general  laws  of  the 
state  gave  the  right  to  take  land  for  the  road-way  only  upon  the 
legislature  having  approved  of  the  route  and  termini  of  the  line, 
it  was  held  the  company  could  not  proceed  to  condemn  lands 
for  that  purpose  until  this  approval  was  made.1 

2.  And  where  the  act  of  the  legislature,  under  which  a  rail- 
way was  empowered  to  take  lands,  required  the  company  to  ap- 
ply to  the  owner,  and  endeavor  to  agree  with  him  as  to  the 
compensation,  unless  the  owner  be  absent  or  legally  incapaci- 
tated, they  have  no  right  to  petition  for  viewers  until  that  is 
done.2  The  petition  should  allege  the  fact  that  they  cannot 
agree  with  the  owner.2 

22  Post,  §  229,  and  cases  cited  in  n.  22,  23. 

1  Gillinwater  v.  The  Mississippi  &  A.  Railw.  Co.,  13  111.  R.  1. 

2  Reitenbaugh  v.  Chester  Valley  Railw.,  21  Penn.  St.  100.  But  where  the 
company  have  the  right  to  lay  their  road,  not  exceeding  six  rods  in  width,  and 
have  fixed  the  centre  line  of  the  same,  they  may  apply  for  the  appointment  of 
appraisers,  and  determine  the  width  of  the  road,  any  time  before  the  appraisal. 
Williams  v.  Hartford  &  New  Haven  Railw.,  13  Conn.  R.  110.  But  slight,  if 
indeed  any  evidence  of  this  failure  to  agree  with  the  land-owner  is  required, 
where  the  claimant  appears  and  makes  no  objection  on  that  ground.     Doughty 

*  118 


240  EMINENT   DOMAIN.  §  65. 

The  right  of  such  companies  to  take  land  is  held  in  some 
states  to  depend  upon  the  legal  sufficiency  and  validity  of  the 
certificate  and  public  record  of  organization  ;  and  it  was  held 
the  company  must  show  these  prerequisites  to  be  strictly  in  con- 
formity with  the  requirements  of  the  law.3 

3.  WherC  the  charter  of  a  railway  company  provides  that  the 
title  of  land  condemned  for  the  use  of  the  company  shall  vest  in 
the  company,  upon  the  payment  of  the  amount  of  the  valuation, 
no  title  vests  until  such  payment.4  In  a  late  case,5  the  law  upon 
*  this  subject  is  thus  summed  up  :  Where  the  charter  of  the  com- 
pany provides,  that  after  the  appraisal  of  land,  for  their  use, 
u  vpun  the  payment  of  the  same,''''  or  deposit,  (as  the  case  may 
be,)  the  company  shall  be  deemed  to  be  seized  and  possessed  of 
all  such  lands,  "  they  must  pay  or  deposit  the  money  before  any 
such  right  accrues."  "  The  payment  or  deposit  of  the  money 
awarded  is  a  condition  precedent  to  the  right  of  the  company  to 
enter  upon  the  land  for  the  purposes  of  construction,  and  without 
compliance  with  it  they  may  be  enjoined  by  a  court  of  equity, 
or  prosecuted  in  trespass  at  law,  for  so  doing.  The  right  of  the 
land-owner  to  the  damages  awarded  is  a  correlative  right  to  that 
of  the  company  to  the  land.  If  the  company  has  no  vested  right 
to  the  land,  the  land-owner  has  none  to  the  price  to  be  paid." 

4.  And  where  the  charter  contained  the  usual  power  to  take 
land,  it  was  held,  that  after  laying  out  their  road  and  filing  the 
location  in  the  land  office,  the  company  had  acquired  a  right  of 
entry,  which  subsequent  purchasers  were  bound  to  respect.6 

5.  And  where  the  road  has  been  laid  and  the  damages  as- 

v.  Somerville  &  Eastern  Railw.,  1  Zab.  (N.  Jersey),  442.  And  the  petition 
may  be  amended  where  this  averment  is  omitted.  Pennsylvania  Railw.  v.  Por- 
ter, 29  Penn.  St.  165. 

3  Atlantic,  &c.  Railw.  v.  Sullivant,  5  Ohio  N.  S.  276. 

4  Baltimore  &  Susquehanna  Railw.  v.  Nesbit,  10  How.  (U.  S.)  395.  See 
also  Compton  v.  Suscmehanna  Railw.,  3  Bland,  386,  391  ;  Van  Wickle  v.  Railw., 
2  Green,  162;  Stacy  v.  Vermont  Central  Railw.,  27  Vt.  R.  39;  Levering 
v.  Railw.  Co.,  8  Watts  &  Serg.  459.  And  upon  payment  of  the  compen- 
sation assessed  by  commissioners,  and  taking  possession  afterward,  the  title  of 
the  company  is  perfected,  as  against  the  party  to  the  proceedings.  Bath  River 
Navigation  Co.  v.  "Willis,  2  Railw.  C.  7. 

6  Stacy  v.  Vermont  Central  Railw.,  27  Vt.  R.  39. 
•  Davis  i?.  E.  T.  &  Ga.  Railw.,  1  Sneed,  94. 
*  119 


§189i.  THEIR   RIGHTS,    DUTIES,   AND    RESPONSIBILITIES.  241 

7.  In  a  recent  case  in  New  York 4  it  is  held,  that  where  the 
parties  have  agreed  that  the  communications  between  them  shall 
be  by  telegraph,  this  in  effect  is  a  warranty  by  each  party  that 
his  communications  to  the  other  shall  be  received  ;  and  a  com- 
munication by  telegraph  is  only  initiated  when  it  is  delivered  to 
the  operator:  it  is  completed  when  it  comes  to  the  party  for 
whom  it  is  designed. 

8.  It  is  here  said,  that  the  rules  of  law  applied  to  contracts 
made  by  correspondence  by  mail  are  not  applicable  to  communi- 
cations by  telegraph.  But  it  seems  to  us  that  the  same  rules 
will  in  the  main  apply.  For  in  both  cases  the  party  taking  the 
risk  of  transmission  will  be  the  same,  and  the  consequences  of 
mistake  or  failure  will  ordinarily  fall  upon  the  same  party  in 
both  modes  of  communication.    But  this  case  seems  to  hold  that 

where  inquiry  is  first  to  be  made  for  the  original,  it  depends  upon  which  party 
is  responsible  for  the  transmission  across  the  line,  or  in  other  words,  whose  a^ent 
the  telegraph  is.  The  first  communication  in  a  transaction,  if  it  is  all  negotiated 
across  the  wires,  will  only  be  effective  in  the  form  in  which  it  reaches  ils  desti- 
nation. In  such  case  inquiry  should  first  be  made  for  the  very  despatch  delivered. 
In  default  of  that,  its  contents  may  be  shown  by  the  next  best  proof. 

"  If  the  course  of  business  is,  as  in  the  cities,  to  preserve  copies  of  all  messages 
received  in  books  kept  for  that  purpose,  a  copy  might  readily  be  obtained  which 
would  ordinarily  be  regarded  as  better  proof  than  the  mere  recollection  of  a 
witness.  And  according  to  the  early  English  and  the  American  practice,  the 
party  is  bound  to  produce  a  copy  of  the  original  (that  being  lost)  when  in  his 
power,  and  have  a  sufficient  time  before  the  trial  to  enable  him  to  do  so ;  1 
Greenleaf  Ev.  sec.  84  and  note.  And  perhaps  if  no  copy  of  such  message  is 
preserved,  but  the  original  message  ordered  to  be  sent  is  preserved,  that  should 
be  produced,  although  this  were  not  strictly  the  original  in  the  case,  the  letter 
delivered,  which  was  the  original,  being  lost. 

"  But  where  the  party  to  whom  the  communication  is  made  is  to  take  the  risk 
of  transmission,  the  message  delivered  to  the  operator  is  the  original,  and  that  is 
to  be  produced,  or  the  nearest  approach  to  it  by  way  of  copy  or  otherwise." 

4  Trevor  v.  "Wood,  41  Barb.  255.  The  rule  in  regard  to  contracts  by  cor- 
respondence through  the  mail  is  well  settled.  Where  one  makes  an  offer  and 
requires  a  reply  by  mail,  the  contract  is  closed  the  moment  the  reply  is  mailed, 
or  deposited  in  the  authorized  place  of  deposit  for  letters  in  the  post-office  or 
elsewhere.  Vassar  v.  Camp,  1  Kernan,  441  ;  Tayloe  v.  Merchants'  Ins.  Co.,  9 
How.  390.  But  these  and  all  similar  cases  go  upon  the  ground  that  the  per- 
son making  the  offer,  directs,  by  implication,  that  the  reply  to  his  proposition 
shall  be  made  through  the  mail,  and  that  when  it  is  so  accepted  the  contract 
shall  be  considered  as  closed.  That  is  said  almost  in  terms  in  Tayloe  v.  Mer- 
chants' Ins.  Co.,  supra,  and  clearly  implied  in  the  terms  of  the  offer  in  Vassar 

vol.  n.  16 


242  TELEGRAPH    COMPANIES.  §1895. 

there  is  a  distinction  between  the  two  modes  of  communication, 
in  that  the  post-office,  being  a  public  institution,  is  not  the  agent 
of  cither  party,  but  is  alone  responsible  for  the  transmission  of 
letters,  while  the  telegraph  is  the  agent  of  the  party  employing 
it.  But  we  do  not  comprehend  the  existence  of  any  such  dis- 
tinction. Both  are  the  agents  of  the  party  employing  them,  and 
such  party  is  responsible  for  the  safe  transmission  of  messages 
by  either.  This  is  well  illustrated  by  the  transmission  of  money 
by  mail.  If  the  debtor  assumes  to  send  the  amount  of  his  debt 
by  mail,  without  instructions  from  his  creditor  to  do  so,  he  as- 
sumes the  risk  of  safe  delivery,  and  consequently  makes  the  post- 
office  his  agent  throughout  the  transit.  But  if  the  creditor  directs 
the  money  sent  by  mail,  it  becomes  his  agent  for  the  purpose, 
and  the  risk  is  his,  and  the  debt  paid  the  moment  the  money  is 
placed  in  the  post-office,  whether  it  ever  reaches  the  creditor  or 
not. 

9.  Where  one  employs  a  special  agent,  who  is  not  the  regular 
operator,  to  transmit  a  message  across  the  wires,  he  takes  the 
responsibility  of  correct  transmission,  whether  such  would  have 
been  the  case  or  not,  if  he  had  employed  the  usual  agencies  of 
telegraphic  communication.5  And  where  such  message  had  ref- 
erence to  responsibility  for  the  act  of  another,  the  sender  will  be 
bound  to  the  extent  of  what  his  agent  transmits,  whether  he  so 

v.  Camp,  supra.  And  in  the  latter  case  it  is  declared  by  the  court,  that  the 
party  making  the  offer  may  make  it  a  condition  that  the  proposed  contract  shall 
not  be  obligatory  upon  him  until  he  receives  notice  of  its  acceptance,  or  unless 
he  receives  such  notice  in  a  specified  time.  But  where  nothing  is  said,  it  is 
the  fair  implication  that  one  making  an  offer  through  the  mail  expects  a  re- 
ply in  the  same  way  ;  and  unless  he  annexes  some  express  condition  to  his 
offer,  he  must,  as  a  reasonable  man,  expect  to  be  bound  by  it,  if  accepted  in 
the  mode  indicated  by  the  terms  of  the  offer.  Unless  this  rule  of  construction 
were  adopted,  it  would  become  impossible  ever  to  have  a  contract  closed,  as 
both  parties,  at  all  times  having  the  locus  penitential,  might  exercise  it  upon  the 
receipt  of  the  reply,  or  before. 

And  we  think  in  all  reason  that  one  who  sends  an  offer  by  telegraph,  asking 
a  replv,  is  bound,  the  moment  the  reply  is  delivered  by  the  same  communication 
by  which  the  offer  is  transmitted.  One  who  sends  a  proposition  by  telegraph, 
and  asks  a  reply,  must,  in  all  reason  and  fairness,  expect  it  will  be  understood, 
a  reply  by  telegraph;  and  if  so,  it  is  difficult  to  perceive  any  difference  between 
correspondence  by  mail  and  by  telegraph  in  effecting  a  contract. 

5  Dunnin"  v.  Roberts,  35  Barb.  4G3. 


§1896.  THEIR   RIGHTS,    DUTIES,    AND    RESPONSIBILITIES.  243 

intended  or  not.  And  a  message  so  sent  will  be  the  same  as  if 
sent  by  himself,  and  will  be  regarded  as  a  memorandum  in  writ- 
ing, under  the  statute  of  frauds,  to  the  extent  of  the  words  sent. 
10.  The  general  question  of  the  party  assuming  the  responsi- 
bility of  the  transmission  of  messages  by  telegraph  is  illustrated 
by  some  of  the  cases  incidentally,  in  allowing  the  party  to  whom 
the  message  is  sent  to  maintain  an  action  for  damages,  on  the 
ground  that  he  had  been  misled  and  had  thereby  suffered  loss, 
where  it  might  have  been  claimed,  that  if  the  party  sending  the 
message  were  bound  by  it,  in  the  form  in  which  it  reached  the 
person  to  whom  it  was  addressed,  he  would  have  been  benefited 
rather  than  damnified,  inasmuch  as  he  would  by  the  error  have 
secured  a  much  larger  sale  than  he  would  otherwise  have  done.6 
But  we  think  the  true  distinction,  in  regard  to  the  party  entitled 
to  bring  the  action,  where  any  default  in  transmitting  a  message 
by  a  telegraph  company  arises,  must  rest  upon  the  distinction 
which  everywhere  obtains  in  actions  on  the  case.  1.  That  the 
contracting  party  may  maintain  the  action  on  the  ground  of 
breach  of  contract,  as  well  as  for  any  breach  of  duty,  as  public 
servants.  2.  Those  who  are  injured  by  their  neglect  of  duty, 
as  public  servants  offering  to  serve  faithfully  all  who  may  have 
any  interest  or  connection  with  their  operations,  may  have  an 
action  on  the  ground  of  a  virtual  tort  in  failing  to  perform  this 
general  duty  of  faithful  and  careful  servants.  This  seems  to  us 
to  be  well  illustrated  by  the  case  last  cited.  The  sender  of  the 
message  might  have  maintained  an  action  to  recover  all  the 
damage  he  sustained  by  an  over  order  being  sent  to  his  corre- 
spondent. On  the  other  hand  the  correspondent  was  not  obliged 
to  forward  the  two  hundred  bouquets  and  collect  pay  for  them  of 
the  man  who  never  intended  to  order  them.  He  was  not  obliged 
to  accept  such  man  as  his  debtor,  but  might  recover  all  his  dam- 
ages, if  he  so  elected,  of  the  party  whose  default  and  negligence 
caused  them. 

6  New  York  &  Washington  Printing  Telegraph  Co.  v.  Dryburg,  35  Penn.  St. 
298.  In  this  case  the  message  was  for  two  hand  bouquets  ;  the  operator  not  read- 
ing the  word  "  hand  "  correctly,  but  calling  it  "hund,"  added  "  red,"  making  the 
order  for  "  two  hundred  bouquets."  The  florist  procured  a  large  quantity  of 
expensive  flowers,  which  the  party  giving  the  order  refused  to  accept,  and  he 
brought  his  action  against  the  telegraph  company  for  the  damage,  and  it  was 
sustained. 


244  TELEGRAPH    COMPANIES.  §  189  &- 

11.  We  must  state  briefly  the  points  which  have  been  decided 
in  other  cases.  It  was  early  decided,  that  where  the  party  send- 
ing a  message  signs  a  paper  handed  him  by  the  company  at  the 
time,  upon  which  is  written  or  printed  a  notice  that  messages  of 
consequence  ought  to  be  repeated  from  the  station  to  which  they 
are  addressed,  and  that  a  higher  rate  is  charged  for  repeated 
messages,  and  that  the  company  will  not  be  responsible  for  mis- 
takes in  unrepeated  messages  ;  he  will  be  bound  by  the  notice, 
the  limitation  being  regarded  as  reasonable,  and  if  not,  it  is  at 
least  such  a  limitation  as  the  defendants  may  properly  annex  to 
all  their  undertakings.7 

12.  A  similar  condition  is  contained  in  most  of  the  bills  upon 
which  messages  are  required  to  be  written  by  those  desiring  to 
send  them  by  American  telegraph  companies.  And  so  far  as  we 
know,  the  courts  have  in  this  country  followed  the  English  deci- 
sion already  referred  to.  In  the  last  case  cited  a  query  is  made 
how  far  the  company  in  such  case  will  be  responsible  for  gross 
neglect.  We  think  there  ought  to  be  no  doubt  in  regard  to  the 
responsibility  of  the  company  in  such  cases  for  even  ordinary 
neglect.  And  the  whole  extent  to  which  such  a  condition  should 
be  held  to  qualify  the  responsibility  of  the  company,  is  that  it  will 
not  be  held  absolutely  responsible,  as  insurers  of  the  accuracy  of 
transmitting  messages,  unless  repeated  and  paid  for  as  such. 

13.  This  is  the  only  ground  upon  which  such  a  company 
could  be  held  responsible  as  insurers,  as  this  is  the  only  mode  in 
which  perfect  certainty  of  accuracy  can  be  secured.  And  if  the 
sender  desires  to  secure  perfect  accuracy,  he  should  so  state, 
and  pay  accordingly,  as  it  seems  to  us.  This  construction  will 
reconcile  the  cases  and  the  conflicting  dicta  in  regard  to  the  prop- 
osition how  far  telegraph  companies  are  to  be  regarded  as  com- 
mon carriers.8 

T  M' Andrew  v.  The  Electric  Telegraph  Co.,  33  Eng.  L.  &.  Eq.  180;  s.  c.  17 
Com.  B.  3. 

s  Thus  in  the  case  cited  in  n.  7  the  company  are  spoken  of  by  Jervis,  Ch.  J. 
as  "  carriers,"  and  therefore  "entitled  to  annex  any  reasonable  condition  to  their 
responsibility  as  insurers.  And  in  Parks  v.  Alta  California  Telegraph  Co.,  13 
Cal.  R.  422,  it  is  expressly  decided  that  telegraph  companies  are  common  carriers  , 
While  in  Birney  v.  New  York  &  Washington  Tel.  Co.,  18  Md.  R.  341,  the  company 
is  held  responsible  for  all  reasonable  diligence  to  transmit  the  message  correctly, 
but  is  not  regarded  as  a  common  carrier,  but  performing  a  service  for  others  ac- 


§1896.         THEIR  RIGHTS,   DUTIES,   AND   RESPONSIBILITIES.  245 

14.  The  rule  of  responsibility  of  telegraph  companies  seems 
to  be  as  correctly  laid  down  in  a  late  case  in  Kentucky  as  in  any 

cording  to  its  established  rules,  and  that  such  rules,  if  known  to  the  employer, 
or  if  he  has  the  means  of  knowing  them  from  part  of  the  contract  and  under- 
taking of  the  company,  bind  him.  But  it  is  here  held,  that  the  exception  as  to 
the  company's  responsibility  for  unrepeated  messages  will  not  excuse  the  compa- 
ny, where  the  operator  forgot  the  message  and  made  no  effort  to  transmit  it. 

And  in  N.  Y.  &  Washington  Printing  Tel.  Co.  v.  Dryburg,  35  Penn.  St.  298, 
it  is  also  declared,  that  telegraph  companies  are  not  responsible  as  common  car- 
riers and  insurers  of  the  correct  transmission  of  their  messages,  but  their  re- 
sponsibility is  similar  to  that  of  common  carriers,  and  if  they  negligently  or 
wilfully  violate  their  duty  of  sending  the  very  message  ordered  to  be  sent,  they 
are  responsible  in  damages  to  the  party  injured.  The  corporation,  it  is  here 
said,  is  liable  in  tort  for  the  misconduct  of  its  agent,  although  not  appointed  un- 
der the  seal  of  the  corporation,  if  the  act  be  done  in  the  ordinary  course  of  his 
service  or  duty.  And  even  when  the  sender  did  not  pay  for  repeating  the  mes- 
sage according  to  the  standing  rules  of  the  company  duly  published,  this  will 
afford  no  excuse  for  the  company,  where  the  operator  added  to  the  message  left 
an  important  matter,  making  it  read  differently,  and,  in  fact,  to  be  an  entirely  dif- 
ferent message. 

These  cases,  and  some  others  might  perhaps  be  quoted  of  the  same  character, 
sufficiently  evince  the  animus  of  the  rule  of  law  upon  the  point  of  the  responsi- 
bility of  telegraph  companies. 

1.  If  they  annex  no  conditions  to  their  undertaking,  they  will  be  expected.to 
do  it  in  the  same  careful  and  faithful  manner  that  other  careful  and  skilful  men 
in  that  department  do  such  business. 

2.  If  a  message  is  left  and  paid  for  as  a  single  transmission,  the  sender,  or 
those  interested  in  the  sending,  will  be  expected  to  assume  what  risk  necessarily 
attends  such  transmissions  after  diligent  and  faithful  effort  to  accomplish  the 
duty. 

3.  As  there  is  but  one  sure  test  of  the  accuracy  of  messages  being  sent,  that 
is,  by  repeating  them,  one  who  desires  to  secure  that,  or  where  business  is  of 
such  importance  as  to  make  that  desirable  and  reasonable,  will  be  expected  to 
so  inform  the  company  and  pay  for  the  insurance. 

4.  This  rule  is  so  obviously  just  and  reasonable,  that  we  believe  it  forms  a 
standing  and  undeviating  rule  of  all  the  telegraph  companies  here  and  else- 
where, and  is  so  notorious,  that  all  persons  sending  messages  may  fairly  be  pre- 
sumed connusant  of  its  existence  and  will  be  bound  by  it. 

There  are  some  few  early  cases  not  falling  precisely  within  these  rules  per- 
haps, but  they  are  not  of  much  weight.  In  the  Courts  of  Common  Pleas,  Ohio, 
in  the  case  of  Brown  v.  Lake  Erie  Telegraph  Co.,  1  Am.  Law.  Reg.  685,  it  was 
decided  at  a  jury  trial,  that  telegraph  companies  are  responsible  for  all  mistakes 
or  errors  in  the  transmission  of  messages  by  them  unless  from  causes  beyond 
their  control. 


246  TELEGRAPH   COMPANIES.  §  189  ft. 

other.9     It  was  here  held,  that  one  who  sends  a  message  under 
the  knowledge  of  the  ordinary  notice,  limiting  the  responsibility 

9  Camp  v.  Western  Union  Telegraph  Co.,  1  Met.  (Ky.)  164.  This  case  is 
supported  by  many  of  the  cases  before  referred  to,  and  by  some  others  more  or 
less  directly.  Thus  in  New  York,  Albany,  &  Buffalo  Tel.  Co.  v.  De  Rutte,  N.  Y. 
Com.  Pleas,  5  Am.  Law  Reg.  x.  s.  407,  the  same  rule  is  laid  down  with  the  quali- 
fication, that  knowledge  of  this  limitation  of  responsibility  by  the  company  must 
be  brought  home  to  the  sender.  But  this  knowledge  will  be  presumed  in  many 
cases,  as,  where  the  sender  signs  a  bill  containing  such  notes,  he  will  be  presumed 
to  have  knowledge  of  its  contents,  as  that  was  within  his  power  and  becomes 
consequently  his  duty.  So  also  where  such  a  condition  from  its  innate  fitness 
may  be  presumed  to  suggest  itself  to  all  persons  as  the  only  ground  upon  which 
such  companies  could  safely  undertake  for  the  perfect  accuracy  of  the  transmis- 
sion of  messages,  or  by  which  it  could  be  secured  by  any  one,  it  will  be  the  duty 
of  the  sender  and  equally  of  the  receiver  to  see  that  his  message  is  or  has  been 
repeated,  or  else  to  understand  that  he  assumes  the  necessary  hazard  in  regard 
to  possible  inaccuracies  in  all  unrepealed  Messages.  And  where  such  a  practice 
becomes  universal  in  the  business  of  telegraphing,  its  notoriety  will  affect  all  with 
presumptive  notice,  since  all  men  who  allow  themselves  to  have  anything  to 
do  with  any  general  business  are  bound  to  inform  themselves  in  regard  to  those 
rules  affecting  the  transaction  of  the  business,  which,  by  common  consent  of  all 
connected  with  it,  are  of  such  reasonableness  and  necessity  as  to  have  become 
of  universal  acceptance.  And  as  all  persons  any  way  connected  with  any  busi- 
ness are  bound  to  understand  its  universal  or  elementary  principles,  so  they  will 
be  presumed  to  do  so.  This  rule  of  construction  is  of  such  universal  applica'- 
tion,  that,  in  the  construction  of  written  contracts,  it  is  always  assumed  that  both 
parties  understand  these  universal  and  elementary  laws  of  the  business  forming 
the  groundwork  or  subject-matter  of  the  contract,  and  that  they  intend  to 
contract  with  reference  to  these  laws  and  in  subordination  to  them,  unless  where 
the  express  terms  of  the  contract  are  in  irreconcilable  conflict  with  these  laws. 
In  such  cases  only  can  it  fairly  be  assumed  by  courts  that  the  parties  intended 
to  contract,  in  disregard  and  in  defiance  of  the  universal  laws  of  the  business. 

These  principles  are  somewhat  considered,  and,  as  we  think,  substantially  con- 
firmed by  the  following  well-considered  case. 

A  telegraph  company  furnished  to  the  public  printed  blanks  upon  which  per- 
sons wishing  to  send  messages  were  to  write  the  same.  These  blanks  contained 
a  printed  heading,  in  which  the  company  stated  the  conditions  upon  which  it 
would  transmit  messages ;  provided  a  method  of  guarding  against  errors  or  delays 
in  the  transmission  or  delivery  of  messages  by  a  repetition  thereof;  and  declared 
that  it  was  agreed  by  the  ccjmpany  and  the  signer,  that  without  such  repetition 
the  liability  of  the  company  for  such  error  or  delay  should  be  limited  to  the 
amount  paid  for  the  transmission,  unless  the  message  was  specially  insured. 
After  the  blank  date  and  before  the  space  for  the  message  were  these  words, 
"  Send  the  following  message  subject  to  the  above  conditions  and  agreement." 
Held,  That  such  a  printed  blank  before  being  filled  up  was  a  general  proposi- 


§1896.  THEIR   RIGHTS,    DUTIES,   AND   RESPONSIBILITIES.  247 

of  the  company  for  unrepeatcd  messages,  as  already  stated,  is 
presumed  to  assent  to  its  binding  obligation,  as  it  is  both  reason- 
able and  just,  and  such  as  the  company  had  the  right  to  prescribe 
as  the  price  and  measure  of  its  responsibility,  and  that  a  party 
acting  under  it,  who  does  not  have  his  message  repeated,  will  be 
regarded  as  sending  the  same  at  his  own  risk,  and  the  company 
will  not  be  liable  for  damages  resulting  from  a  mistake  not  occa- 
sioned by  negligence  or  want  of  skill  in  the  agents  of  the  com- 
pany. 

15.  In  the  case  of  the  New  York,  Albany,  and  Buffalo  Tele- 
graph Company9  it  was  decided,  in  regard  to  messages  going 
beyond  the  line  of  the  first  company,  that  where  the  first  com- 
pany takes  the  compensation  for  the  entire  distance,  it  thereby 
engages  for  the  due  delivery  of  the  message  at  its  destination, 
unless  it  expressly  limits  its  responsibility  to  its  own  route,  or 
the  circumstances  are  such  as  clearly  to  indicate  that  such  was 
the  understanding  of  the  parties.     It  is  here  said  the  telegraph 

tion  to  the  public  of  the  terms  and  conditions  upon  which  messages  would  be 
sent  and  the  company  become  liable  in  case  of  error  or  accident. 

That  by  writing  a  message  under  such  a  heading,  and  signing  and  delivering 
it  for  transmission,  the  sender  accepted  the  proposition,  and  it  became  an  agree- 
'  ment  binding  upon  the  company  only  according  to  its  specified  terms  and  con- 
ditions. 

And  that  the  legal  consequence  was  not  varied  by  the  fact  that  the  sender  of 
the  message  had  not  read  the  printed  conditions  and  agreement  there  subscribed. 
That  such  an  omission  Avould  be  gross  negligence,  which  he. would  not  be  al- 
lowed to  set  up  to  establish  a  liability  against  the  company  which  was  expressly 
stipulated  against. 

Against  such  a  claim  the  principle  of  estoppel  in  pais  applies  in  full  force. 

Telegraph  companies  are  not  common  carriers.  The  two  kinds  of  business 
have  but  a  mere  fanciful  resemblance  and  cannot  be  subjected  to  the  same  legal 
rules  and  liabilities.  But  even  if  they  were  common  carriers,  their  right  to  lim- 
it their  liability  by  express  contract  is  well  settled. 

The  plaintiffs  delivered  to  the  defendant,  for  transmission  from  Palmyra  to 
their  correspondents  in  N.  Y.,  a  message  directing  the  purchase  of  "  $  700  in 
gold,"  written  under  such  printed  blank  as  above  described,  and  signed  by  them 
without  ordering  the  message  to  be  repeated  or  providing  for  its  being  in- 
sured. Through  the  error  of  some  of  the  defendant's  operators  the  message 
as  delivered  to  the  correspondents  required  them  to  purchase  $  7000  instead  of 
the  smaller  sum  ;  in  consequence  of  which  error  the  plaintiff  suffered  serious  loss. 
Held,  that  they  could  not  recover  the  amount  of  the  company.  Breese  v. 
United  States  Tel.  Co.,  45  Barb.  274. 


248  TELEGRAPn   COMPANIES.  §1895 

company  arc  not  strictly  common  carriers,  but  their  responsi- 
bility is  analogous  and  to  be  measured  by  the  application  of 
analogous  principles,  but  not  always  to  the  same  extent.  We 
see  no  reason  why  the  responsibility  of  the  first  company  for  the 
entire  route  may  not  fairly  be  measured  by  the  same  analogies 
as  that  of  common  carriers  of  passengers,  which  will  be  found 
sufficiently  discussed  in  another  place.  There  is  a  well-consid- 
ered case  in  Upper  Canada  bearing  upon  this  point,  but  decided 
by  a  divided  court,  but  it  would  seem  that  the  opinion  of  the 
majority  of  the  court  followed  the  analogies  applicable  to  passen- 
ger-carriers more  closely  than  that  of  the  dissenting  judge.10 

16.  There  has  been  considerable  discussion  in  the  courts  in 
regard  to  the  proper  rule  of  damages,  in  case  of  the  default  of 

10  Defendants  owned  a  telegraph  extending  to  Buffalo  only,  but  in  their 
printed  handbills  they  advertised  their  line  as  "  connecting  with  all  the  princi- 
pal jcities  and  towns  in  Canada  and  the  United  States";  and  they  received  the 
charge  for  transmission  to  places  beyond  their  line.  The  plaintiff  had  some 
flour  in  the  hands  of  N.,  his  agent  at  N.  Y.,  and  about  3  P.  M.,  on  the  23d  Nov., 
delivered  to  the  defendants,  at  Hamilton,  the  following  message  addressed  to 
N.,  paying  the  charge  to  N.  Y. :  "Am  disposed  to  realize — sell  1,500  bar- 
rels." At  the  time  of  delivering  the  message  nothing  was  said  as  to  its  impor- 
tance, or  the  necessity  for  immediate  despatch,  and,  owing  to  the  defendants'  line 
being  out  of  order,  it  was  not  sent  till  after  five  on  the  following  afternoon,  — * 
being  Saturday.  The  defendants'  operator  received  it  at  Buffalo,  and  on  the 
same  day  delivered  it  at  the  office  of  the  American  Company,  paying  their 
charge.  It  was  not  received  by  the  plaintiff's  agent  in  N.  Y.  until  after  busi- 
ness hours,  on  the  26th,  and  in  the  mean  time  the  price  of  flour  had  fallen  ma- 
terially. The  agent,  therefore,  did  not  sell,  but  held  the  flour  until  the  end  of 
December,  and  as  the  market  had  continued  to  fall,  it  then  realized  nearly  $  5 
a  barrel  less  than  could  have  been  obtained  on  the  23d  or  24th.  In  an  action 
against  defendants  for  negligence  in  transmitting  and  delivering  the  message  at 
N.  Y.,  the  jury  found  for  defendants,  and  on  motion  for  a  new  trial,  Held 

That  the  verdict  must  stand,  for  the  only  negligence  shown  was  in  delivering 
the  message  at  New  York,  and  if  defendants  were  liable  for  that  they  would  not 
be  answerable  for  loss  caused  by  a  fall  in  the  market,  but  under  the  evidence  for 
nominal  damages  only. 

Per  Robinson,  C.  J.,  and  McLean,  J.  —  Defendants,  under  the  facts  proved, 
could  not  be  held  liable  for  delay  beyond  their  own  line,  but  were  bound  only 
to  transmit  the  message  to  Buffalo,  and  hand  it  to  the  American  Co.  there,  pay- 
ing the  charge  to  New  York. 

Per  Burns,  J.  —  That  the  defendants  were  liable  as  upon  an  undertaking  to 
transmit  the  message  to  New  York  and  deliver  it  there.  Stevenson  v.  The 
Montreal  Tel.  Co.,  16  Upper  Canada,  530. 


§1896.  THEIR   RIGHTS,   DUTIES,   AND   RESPONSIBILITIES.  249 

telegraph  companies  in  sending  messages  correctly.  It  has  been 
claimed,  that,  by  reason  of  the  ignorance  of  the  company,  in 
most  instances,  of  the  importance  of  messages  sent  along  their 
line,  there  is  no  properly  defined  rule  of  damages,  and  no  meas- 
ure of  the  diligence  or  responsibility  of  the  company,  and  no 
standard  by  which  they  could  properly  measure  their  charges 
so  as  to  include  the  proper  premium  for  insurance.11 

17.  But  we  do  not  apprehend  there  will  really  be  any  diffi- 
culty in  such  companies  securing  themselves  against  all  reason- 
able hazard,  by  the  use  of  suitable  caution  in  assuring  them- 
selves at  the  time  of  receiving  a  message  that  they  understand 
the  correct  reading  of  it.  For  after  that  it  is  always  in  their 
power  to  know  with  absolute  certainty  whether  it  is  correctly 
transmitted,  by  having  it  repeated  back.  And  as  we  have  be- 
fore said,  if  the  sender  do  not  choose  to  be  at  this  expense  he 
will  then  assume  all  risk  of  the  transmission,  so  that  in  cither 
case  all  the  company  really  require  to  render  their  business  en- 
tirely safe,  is,  to  be  sure  they  understand  the  message  left  with 
them,  which  is  not  attended  with  any  necessary  uncertainty. 

18.  The  rule  of  damages  then  will  be  a  plain  one.  The  com- 
pany must  make  good  the  loss  resulting  directly  from  any  de- 
fault on  their  part.  We  see  no  reason  why  the  ordinary  rule 
should  not  be  applied  to  cases  of  this  character,  as  that  the 
party  injured  by  a  breach  of  contract  is  entitled  to  recover  all 
his  damages,  including  gains  prevented  as  well  as  losses  sus- 
tained, provided  they  are  certain  and  such  as  might  naturally 
be  expected  to  follow  the  breach.12  It  is  here  said,  that  it  is 
only  uncertain  and  contingent  profits  which  the  law  excludes, 
and  not  such  as,  being  the  immediate  and  necessary  result  of  the 
breach  of  contract,  may  be  fairly  supposed  to  have  entered  into 
the  contemplation  of  the  parties  when  they  made  it,  and  are  ca- 
pable of  being  definitely  ascertained  by  reference  to  established 
market  rates.  This  same  rule  of  damages  has  been  applied,  in  the 
State  of  New  York,  to  cases  of  failure  to  send  messages  by  tele- 
graph companies  according  to  their  duty  and  undertaking.13 

11  Opinion  of  Jervis,  C.  J.,  in  Me  Andrew  v.  The  Eleetric  Tel.  Co.,  33  Eng. 
L.  &  Eq.  180,  185  ;  s.  c.  17  Com.  B.  3. 

12  Griffin  v.  Colver,  1G  N.  Y.  R.  489. 

13  Landsberger  v.  Magnetic  Tel.  Co.,  32  Barb.  530. 


250  TELEGRAPH   COMPANIES.  §1896. 

19.  We  do  not  apprehend  there  is  any  valid  objection  to  the 
application  of  this  rule  of  damages  to  the  case  of  telegraph  com- 
panies, on  the  ground  of  the  secrecy  and  reserve  with  which 
such  correspondence  is  commonly  conducted,  and  that  conse- 
quently the  companies  have  not  in  most  cases  any  sufficient  data 
to  form  any  just  appreciation  of  the  extent  of  the  responsibility. 
The  rule  is  not  based  so  much  upon  what  is  supposed  to  have 
been  the  actual  expectation  of  the  parties,  as  what  it  ought  to 
have  been  under  the  circumstances,  if  their  minds  had  been 
drawn  towards  the  contingency  of  a  failure  in  performance. 
And  if  one  or  both  the  parties  choose  to  enter  into  the  contract, 
in  such  ignorance  of  the  facts  as  not  to  have  been  capable  at  the 
time  of  estimating  the  real  extent  of  the  responsibility  assumed, 
that  can  be  no  sufficient  ground  to  exonerate  him  from  the  full 
extent  of  responsibility  attaching  to  the  contract.  The  rule  of 
responsibility  is  the  same  for  all  who  freely  enter  into  the  same 
contract,  whether  fully  or  correctly  informed  of  the  extent  of  the 
obligation  or  not,  provided  they  are  not  misled  by  the  opposite 
party. 

20.  There  is  one  point  decided  in  a  somewhat  early  case14 
upon  this  subject,  which  seems  to  us  exceedingly  reasonable ; 
that  if,  when  the  party  sending  a  message  for  the  purchase  of 
goods,  learns  that  by  mistake  the  amount  ordered  has  been  en- 
larged in  the  transmission  of  the  message,  and  in  consequence 
his  agent  has  purchased  many  times  more  than  he  directed,  he 
still  retains  the  whole  amount  purchased,  he  cannot  recover  any 
loss  which  accrues  beyond  what  would  have  been  experienced 
upon  an  immediate  sale  ;  and  if  he  sends  the  commodity  to  an- 
other market  for  purposes  of  speculation,  with  the  intention  of 
taking  to  himself  the  profits,  if  any  should  arise,  and  in  the 
event  of  loss  visiting  it  upon  the  company,  he  cannot  recover  for 
any  loss  sustained.  For,  by  adopting  the  purchase  in  that  mode, 
he  makes  the  act  of  the  company  in  transmitting  the  message 
enlarged,  his  own,  and  he  cannot  accept  the  excess  purchased 
both  for  himself  and  the  company  at  the  same  time.  He  must 
elect  at  the  time,  whether  to  regard  the  excess  of  the  order  as 
purchased  for  himself  or  the  company,  and  dispose  of  it  accord- 

14  Washington  &  New  Orleans  Tel.  Co.  v.  Hobson,  15  Gratt.  122. 


§1896.  THEIR   RIGHTS,   DUTIES,    AND   RESPONSIBILITIES.  251 

ingly.  The  points  decided  in  the  last  case  cited  will  repay  re- 
peating here,  as  they  have  a  very  sensible  bearing  upon  ques- 
tions of  damage  arising  in  this  class  of  actions.15 

15  In  an  action  against  a  telegraph  company  for  damages  sustained  by  the 
plaintiffs  by  the  alteration  of  a  message  sent  on  their  line,  wherein-  an  order  to 
the  plaintiffs'  factors  in  Mobile  to  buy  500  bales  of  cotton  was  altered  to  2,500, 
but  not  charging  negligence  in  the  company,  an  instruction  that  the  defendants 
are  not  responsible  as  common  carriers,  but  only  as  general  agents,  for  such 
gross  negligence  as  in  law  amounts  to  fraud,  is  not  authorized  by  the  pleadings, 
and  properly  refused. 

In  such  case  the  factors  having  bought  2078  bales  of  cotton  before  the  mistake 
in  the  message  was  ascertained,  if  the  company  is  liable  to  the  plaintiffs  for  the 
damages  resulting  from  the  alteration  of  the  message,  the  commissions  of  the 
factors  upon  the  purchase  of  the  cotton  are  a  part  of  the  damages  for  which  the 
company  is  liable,  and  the  plaintiffs  are  not  bound  to  accept  any  offer  of 
the  company  to  pay  the  damages  which  excludes  these  commissions. 

In  such  case  if  the  company  is  liable  to  the  plaintiffs  for  damages  arising  from 
the  alteration  of  the  message,  the  measure  of  these  damages  is  what  was  lost  on 
the  sale  at  Mobile  of  the  excess  of  the  cotton  above  that  ordered,  or,  if  not  sold 
there,  what  would  have  been  the  loss  on  the  sale  of  the  cotton  at  Mobile  in  the 
condition  and  circumstances  in  which  it  was  when  the  mistake  was  ascertained ; 
including  in  such  loss  all  the  proper  costs  and  charges  thereon. 

When  the  mistake  was  ascertained,  a  part  of  the  cotton  was  on  board  a  ship 
to  be  sent  to  Liverpool;  a  part  was  under  a  contract  of  affreightment  to  the 
same  place,  but  not  on  board.  The  whole  should  have  been  sold  as  it  was  at 
Mobile ;  the  plaintiffs  having  sent  it  to  Liverpool  and  sold  it  there,  the  loss  to 
the  company  must  not  be  increased  by  this  act  of  the  plaintiffs,  but  must  be 
based  upon  an  estimate  of  what  it  would  have  sold  for,  —  a  part  on  shipboard, 
and  a  part  under  contract  of  affreightment. 

If  the  plaintiffs  sent  the  cotton  to  Liverpool  for  purposes  of  speculation,  with 
the  intention  of  taking  to  themselves  the  profits,  if  there  were  any,  and,  in  the 
event  of  a  loss,  visiting  the  loss  upon  the  company,  they  are  not  entitled  to  re- 
cover for  any  loss  sustained  upon  it. 

But  if  the  plaintiffs  sent  the  cotton  to  Liverpool,  not  with  a  purpose  of  taking 
the  profits,  if  any,  but  only  indemnify  themselves  out  of  the  proceeds  to  the 
extent  of  the  cost  and  the  obligations  incurred  by  them,  they  do  not  thereby 
lose  their  right  to  recover  from  the  company  the  damages  which  they  would 
have  sustained  if  the  cotton  had  been  sold  at  Mobile. 

The  plaintiffs,  if  they  intended  to  hold  the  company  responsible  for  the  excess 
of  the  cotton  purchased,  should,  as  soon  as  they  were  apprized  of  the  purchase, 
have  notified  the  company  of  such  intention  ;  should  have  made  a  tender  of 
such  excess  to  the  company  on  the  condition  of  its  paying  the  price  and  all  the 
charges  incident  to  the  purchase ;  and  also,  that,  in  case  of  its  refusal  to  accept 
said  tender  and  comply  with  its  conditions,  they  would  proceed  to  sell  such 
excess  at  Mobile,  and  after  crediting  said  company  with  the  net  profits,  would 


252  TELEGRAPH    COMPANIES.  §1896. 

21.  There  are  some  manuscript  cases  bearing  upon  the  ques- 
tion of  damages  in  actions  against  telegraph  companies  for  de- 
fault in  transmitting  messages,  which  it  may  be  well  to  state.16 
In  the  former  of  these  cases  it  is  said  to  have  been  held,  that 
where  a  merchant  in  New  York  ordered  a  message  sent,  "  Stop 
sewing  pedal  braid  till  I  see  you,"  and  it  was  delivered,  "  Keep 
sewing,"  &c,  and  from  the  error  a  large  quantity  of  braid  was 
manufactured  into  unfashionable  shape,  which  the  merchant  re- 
ceived and  disposed  of  in  the  best  manner,  that  he  was  entitled 
to  recover  the  whole  loss  sustained  in  consequence  of  the  error. 
And  the  same  rule  was  adopted  in  the  case  secondly  cited 
above.16 

22.  Where  the  statute  imposes  a  penalty  for  refusing  to  send 
a  message  across  the  line  of  the  company,  to  be  received  by  the 
person  contracting,  it  was  held  that,  where  one  directed  a  mes- 
sage sent  by  one  company  to  a  point  beyond  their  own  line,  and 
the  first  company,  at  the  end  of  their  line,  tendered  the  message  to 
the  next  company  on  the  line  for  transmission,  which  was  re- 
fused, such  person  was  not  the  person  contracting  or  offering  to 
contract  with  the  second  company ;  but  that  the  action  to  re- 
look  to  it  for  the  difference  between  the  amount  of  such  proceeds  and  the  cost 
of  the  excess,  including  all  proper  charges.  And  upon  the  failure  of  the  com- 
pany after  notice  to  accede  to  their  offer,  they  should  have  proceeded  accord- 
ingly.    Washington  &  N.  O.  Tel.  Co.  v.  Hobson  &  Son,  15  Gratt.  122. 

10  Lockwood  v.  Independent  Line  of  Tel.  Co.,  New  York  Com.  Pleas,  Nov. 
18G5,  before  Judge  Daly,  a  judge  of  learning  and  experience,  and  whose  de- 
cisions always  have  weight  when  authoritatively  reported. 

There  is  a  case  reported  in  1  Upper  Canada  Law  Journal,  N.  S.  24  7, 
as  decided  in  the  Common  Pleas,  New  York,  by  the  name  of  Rittenhouse  v.  The 
Independent  Line  of  Telegraph,  where  it  was  said  to  have  been  held  that  a 
telegraph  company  is  not  excused  from  liability  for  an  erroneous  transmission  of 
a  message,  by  the  fact  that  its  meaning  was  unintelligible  to  the  company,  so 
long  as  the  words  were  plain.  It  is  also  here  reported  to  have  been  held, 
that,  when  an  order  is  sent  by  telegraph  for  the  purchase  of  one  article,  and  by 
a  blunder  of  the  operator  the  despatch  is  made  to  read  as  an  order  for  another, 
the  company  must  make  good  any  difference  between  the  price  paid  for  the 
article  actually  ordered,  if  purchased  as  soon  as  the  error  is  discovered,  and  the 
price  at  which  it  could  have  been  purchased  when  the  despatch  was  received. 
But  the  company  is  not  liable  for  a  loss  upon  a  resale  of  the  article  under  the  er- 
roneous despatch,  unless  the  company  has  had  fair  notice  of  such  resale.  Leo- 
nerd  &  Burton  v.  N.  Y.,  Albany,  &  Buff.  Tel.  Co.,  fifth  Dist.  Sup.  Court. 


§  1896.  THEIR    RIGHTS,    DUTIES,    AND    RESPONSIBILITIES.  253 

cover  the  penalty  should  have  been  in  the  name  of  the  first  com- 
pany.17 

23.  In  England,  and  in  many  of  the  American  states,  tele- 
graph companies  are  required  to  serve  all  who  desire  it,  on  such 
reasonable  terms  as  shall  be  prescribed  by  the  company  for  the 
regulation  of  their  business,  making  no  discrimination  or  prefer- 
ence in  favor  of  or  against  any  one.  But  it  was  held,  that  where 
one  contracted  with  a  telegraph  company  to  collect  public  intel- 
ligence and  send  it  over  their  line  exclusively  ;  the  company  to 
pay  him  fifty  per  cent,  of  the  charge  of  transmission  for  collect- 

17  Thurn  v.  Alta  Tel.  Co.,  15  Cal.  R.  472.  The  case  is  thus  stated  at  length: 
Where  a  telegraph  company  fails  to  transmit  a  message  upon  compliance,  by  the 
person  contracting  with  it,  with  the  conditions  required  by  §  154  of  the  act  of 
1850  (370),  an  action  for  the  penalty  given  by  the  act  lies  in  favor  of  such 
person. 

The  sum  to  be  recovered  is  a  penalty  for  the  breach  of  the  duty  to  transmit 
the  message,  and  the  act  is,  in  this  section,  a  penal  law,  to  be  strictly  construed. 

Under  the  above  section  the  person  entitled  to  recover  the  penalty  is  the 
party  who  contracts,  or  offers  to  contract,  for  the  transmission  of  the  despatch. 
He  may  probably  do  this  by  his  agent  or  servant,  but  when  the  contract  is 
made  by  a  party  as  agent  of  another,  in  order  to  give  a  right  of  action  to  the 
principal,  the  fact  of  agency  must  be  shown. 

Proof  as  follows :  ''  I  am  Superintendent  of  the  California  State  Telegraph 
Company,  and  operator  in  their  office  at  San  Francisco.  July  2nd,  Plaintiff 
came  to  our  office  and  delivered  a  message,  to  be  transmitted  to  Jackson,  and 
paid  for  transmitting  it  there.  The  message  was,  '  Alta  Express  Co.,  Jackson. 
If  you  have  package  for  me,  forward  immediately.  Signed,  C.  Thurn.'  In  the 
margin  of  the  message  sent  were  the  words  '  F.  July  2nd.'  Few  words  passed 
when  the  message  was  delivered  ;  no  express  agreement  that  the  Cal.  State 
Telegraph  Company  should  forward  the  message  to  Sacramento,  and  employ 
the  Alta  California  Telegraph  Company  to  transmit  it  from  there  to  Jackson. 
He  must  have  known  that  we  could  not  send  it  to  Jackson,  as  we  had  no  line 
there.  I  think  there  was  something  said  about  sending  it  by  the  defendants' 
line  from  Sacramento."  C.  Thurn,  the  plaintiff,  sues  the  Alta  Cal.  Telegraph 
Co.  for  the  penalty  under  the  154th  section  of  the  act  of  1850  (370).  Held, 
that  under  these  facts  he  is  not  the  person  making  or  offering  to  make  the 
contract,  within  the  meaning  of  the  act,  and  cannot  recover ;  that  the  only  con- 
tract proven  is  a  contract  by  the  State  Telegraph  Company  to  send  the  message 
or  have  it  sent ;  and  a  contract  on  its  part  to  contract  on  its  own  account  with 
the  Alta  Telegraph  Co.  to  send  the  message. 

If  the  message  in  this  case  had  not  been  transmitted,  plaintiff  might  have  held 
the  State  Telegraph  Co.  responsible.  Thurn  v.  Alta  Telegraph  Co.,  15  Cal.  R. 
472. 


254  TELEGRAPH    COMPANIES.  §  189  b. 

ing  it,  or  in  other  words,  to  transmit  it  for  half  price  ;  it  was 
held  that  this  was  no  violation  of  the  English  statute,  requiring 
companies  to  do  business  for  all,  "  without  favor  or  preference," 
it  being  regarded  by  the  court  as  a  legitimate  mode  of  compen- 
sating the  party  for  collecting  the  intelligence,  and  for  bringing 
custom  to  the  company.18  And  it  has  also  been  decided,  that 
the  statutory  prohibition  against  disclosing  the  secrets  of  the 
office  or  communicating  messages,  does  not  extend  to  a  disclosure 
as  a  witness  in  a  court  of  justice.10  The  wonder  is  that  any  one 
should  ever  have  supposed  that  such  a  disclosure  could  incur  a 
penalty  under  the  statute. 

24.  There  are  some  few  other  points,  of  rather  a  miscellaneous 
character,  which  have  been  decided  in  regard  to  the  rights,  du- 
ties, and  liabilities  of  telegraph  companies,  which  we  shall  state 
very  briefly. 

1.  We  have  already  noticed  some  cases  bearing  upon  the  rel- 
ative rights,  pertaining  to  highways  and  telegraph  companies, 
under  the  subject  of  Eminent  Domain  and  Highways.  It  seems 
to  be  settled  in  England,  that  placing  telegraph  posts  in  the 
highway  without  legislative  authority,  will  be  ordinarily  treated 
as  a  nuisance,  unless  placed  in  some  position  inaccessible  to  or- 
dinary travellers,  even  when  not  placed  in  the  travelled  or  cen- 
tral portion  of  the  highway.20  So,  also,  when  a  telegraph  com- 
pany without  any  parliamentary  powers  laid  down  their  wires 
in  tubes  under  a  highway,  an  information  and  bill  was  filed, 
complaining  of  this  as  a  nuisance  to  the  public,  and  an  invasion 
of  the  rights  of  the  adjacent  land-owner.  But  the  court  refused 
to  grant  an  injunction  until  the  rights  of  the  parties  had  been 
established  at  law.21 

2.  And  where  telegraph  companies  are  allowed  by  legislative 
grant  to  lay  down  their  lines  along  a  highway,  they  are  still 
bound  to  see  that  no  injury  happens  to  passers  along  the  high- 
way, from  the   defective  or  imperfect  condition  of  the  instru- 

18  Reuter  v.  Electric  Tel.  Co.,  0  Ellis  &  Bl.  341. 

19  Ilenisler  v.  Freedman,  2  Parsons,  274. 

20  Reg.  i>.  United  Kingdom  E.  Telegraph  Co.,  9  Cox,  C.  C.  174  ;  s.  c.  6  L. 
T.  N.  S.  378  ;  s.  c.  31  L.  J.  N.  S.,  Magistrates  cases ;  ante,  §  109. 

21  Attorney-General   v.  The   United   Kingdom   Electric   Telegraph   Co.,  30 
Beav.  287  ;  s.  c  8  Jur.  N.  S.  583. 


§1896.  THEIR   RIGHTS,   DUTIES,    AND   RESPONSIBILITIES.  255 

ments  used  by  them,  whether  posts  or  wires.22  It  was  here  de- 
cided, that  in  such  cases  the  company  will  be  responsible  for 
damages  to  an  individual,  caused  by  the  erection  of  the  telegraph 
along  the  highway,  if  improperly  made,  or  if  suffered  to  fall 
down  and  be  out  of  repair,  although  the  travelled  part  of  the 
way  is  not  thereby  obstructed.  In  this  case  the  plaintiff  was  a 
passenger  upon  a  stage  coach,  which  was  upset  by  coming  in 
contact  with  the  wires  of  the  company,  in  consequence  of  the 
decay  and  swaying  over  of  the  posts  and  the  lowering  of  the 
wires  thereby,  although  not  across  the  travelled  part  of  the 
highway. 

3.  In  one  case23  the  plaintiffs  were  the  owners  of  a  telegraph 
cable  lying  at  the  bottom  of  the  sea  between  England  and  France. 
The  defendants  were  aliens,  and  their  ships,  while  sailing  upon 
the  high  seas,  more  than  three  miles  from  the  English  coast, 
lowered  an  anchor  and  injured  the  cable.  It  was  held  that  the 
court  would  presume  that  the  masters  of  the  ship  knew  of  the 
existence  and  situation  of  submarine  cables,  and  that  a  duty  was 
thereby  cast  upon  all  masters  of  ships  to  manage  their  vessels  so 
carefully  and  skilfully  as  to  avoid  (if  possible,  by  the  exercise  of 
reasonable  precaution)  injuring  these  cables. 

4.  The  extent  of  the  duty  of  maintaining  secrecy  among  the 
operatives  and  employees  of  the  telegraph  companies  whose  em- 
ployment brings  them  acquainted  with  the  contents  of  messages 
sent  or  received,  is  of  great  importance.  This  is  in  many  of  the 
states  secured  by  the  imposition  of  penalties  for  disclosure. 
But  we  apprehend  that  no  security  will  be  available  in  any 
such  sense  as  to  render  this  mode  of  communication  safe  and 
comfortable,  unless  it  be  cither  the  religious  sense  of  duty, 
or  at  the  least  a  sense  of  moral  honesty  and  honor,  which  should 
lead  one  to  speak  the  truth  and  to  keep  the  truth,  when  that  be- 
comes a  duty.24     There  can  be  no  question  of  the  duty  of  the 

22  Dickey  v.  Maine  Tel.  Co.,  4G  Me.  R.  483  ;  s.  c.  8  Am.  Law  Reg.  358. 

23  Submarine  Tel.  Co.  v.  Dickson,  15  C.  B.  N.  S.  750;  s.  c.  10  Jur.  N.  S.  211. 

24  It  has  been  observed  of  late  that  women  are  more  generally  employed  in 
telegraph  offices  than  formerly,  and  especially  on  the  other  side  of  the  Atlantic. 
This  has  been  attributed  to  the  higher  sense  of  truth  and  honor  among  that  sex 
than  the  other.  The  same  thing  leads  many  to  employ  women  as  cashiers  in 
places  where  it  is  impossible  to  place  any  check  upon  them.     The  same  reason 


25G  TELEGRAPH    COMPANIES.  §  189&. 

most  inviolable  secrecy  in  regard  to  all  messages  sent  or  re- 
ceived by  telegraph  companies.  And  unless  this  can  be  secured 
it  will  very  essentially  abridge  the  extent  of  "their  business. 
There  is  a  duty  in  all  employments  to  keep  the  secrets  of  the 
business,  but  more  especially  in  one  where  such  extensive  cor- 
respondence is  conducted.'25 

5.  There  is  one  decision  in  regard  to  these  companies  by  the 
Supreme  Court  of  Nova  Scotia20  which  has  more  bearing  upon 
the  question  of  currency  than  any  other.  By  the  terms  of  the 
lease  of  the  plaintiffs'  line  to  the  defendants  payments  are  to 
be  made  for  rent  in  "  dollars  and  cents  of  United  States  cur- 
rency." A  question  arose  whether  the  treasury  notes,  made 
lawful  money  in  the  United  States  by  subsequent  act  of  Con- 
gress, could  be  regarded  as  coming  fairly  within  the  terms  of 
the  lease,  the  value  of  the  United  States  currency  being  thereby 
greatly  depreciated.  The  court  held  that  notes  were  not  a  legal 
tender  on  the  lease  for  rent.  This  decision  unquestionably 
meets  the  equity  and  justice  of  the  case,  but  whether  it  meets 
the  law  is,  perhaps,  more  questionable.  We  have  come  to  re- 
gard that  act  as  entirely  within  the  constitutional  powers  of  Con- 
gress, although  a  most  awfnl  experiment  to  visit  upon  a  com- 
mercial country  like  our  own,  and  one  which  foreign  courts 
would  look  upon  as  altogether  inadmissible  under  the  circum- 
stances in  which  it  was  adopted.  But  if  its  adoption  was  doubt- 
ful, its  continuance  seems  more  so,  after  the  emergency  which 
called  it  into  existence  has  passed  away. 

has  been  assigned  for  employing  women  in  highly  responsible  places  in  the  Treas- 
ury department  since  the  manufacture  of  so  much  of  the  currency  of  the  country 
there.     This  is  not  the  place  to  discuss  questions  of  that  character. 

25  In  Tipping  v.  Clark,  2  Hare,  393,  Wt'gram,  Vice-Chancellor,  said,  that  every 
clerk  employed  in  a  merchant's  counting-house  is  under  an  implied  contract 
that  he  will  not  make  public  that  which  he  learns  in  the  execution  of  his  duty 
as  clerk.  See  also  Prof.  Dwight's  excellent  article  on  the  law  of  this  subject. 
4  Am.  Law  Keg.  193,  206,  and  cases  cited  on  this  point.  We  desire  here  to 
make  our  acknowledgments  for  great  assistance  from  that  article  in  preparing 
our  own  chapter  on  the  topic. 

26  The  Nova  Scotia  Tel.  Co.  v.  Am.  Tel.  Co.,  4  Am.  Law  Reg.  N.  S.  3C5. 


§  70.  CORPORATE  FRANCHISES  CONDEMNED.  257 

for  the  legislature,  under  the  right  of  eminent  domain,  to  grant 
authority  to  a  railway  corporation,  to  take  a  highway  longitudi- 
nally in  the  construction  of  their  road.  The  power  of  eminent 
domain  is  a  high  prerogative  of  sovereignty,  founded  upon  pub- 
lic exigency,  according  to  the  maxim,  Sains  reipublicce  lex  su- 
premo, est,  to  which  all  minor  considerations  must  yield,  and 
which  can  only  be  limited  by  such  exigency.  The  grant  of  land 
for  one  public  use  must  yield  to  that  of  another  more  urgent."8 

5.  The  great  question  of  the  inviolability  of  corporate  fran- 
chises, which  we  shall  have  occason  to  discuss  more  at  large 
hereafter,9  is,  no  doubt,  to  a  certain  extent,  involved  here.  For, 
upon  general  principles  of  legislative  authority,  there  could  be 
no  question  that  a  corporation,  which  is  the  mere  creature  of  the 
legislature,  might  be,  at  once  and  unconditionally,  extinguished, 
by  repeal  of  the  charter.  This  is  confessedly  within  the  power 
of  the  legislative  authority  of  the  British  parliament ;  and  the 
legislative  authority  of  the  parliament  of  Great  Britain  is  no 
more  extensive  than  that  of  the  *  legislatures  of  the  American 
states,  aside  from  restrictions  contained  in  the  constitutions  of 
the  United  States,  and  of  the  several  states.10 

6.  The  only  limitation  upon  this  power  over  private  copora- 
tions,  in  most  of  the  states,  perhaps  in  all,  is  found  in  that  pro- 
vision of  the  United  States  constitution  which  prohibits  the 
legislatures  of  the  several  states  from  passing  any  law  impairing 
the  obligation  of  contracts.  And  the  proper  limits  of  this  re- 
striction, in  regard  to  corporations,  is  not  altogether  well  de- 
fined, in  the  different  opinions  of  the  several  judges  of  the 
supreme  national  tribunal  upon  this  subject ;  nor  is  there  any- 
thing approaching  unanimity  among  them. 

7.  But  it  may  perhaps  be  regarded  as  settled,  for  the  time  at 
least,  that  where  exclusive  privileges  are  conferred  upon  private 

8  Springfield  v.  Conn.  River  Railw.,  4  Cush.  63.  See  also  upon  the  general 
subject,  Chesapeake  &  Ohio  Canal  Co.  v.  Baltimore  &  Ohio  Railw.,  4  Gill  & 
Johns.  1  ;  Forward  v.  Hampshire  &  Hampden  Canal  Co.,  22  Pick.  462,  where 
the  prior  company  is  held  bound  by  acquiescence  in  the  transfer  of  its  franchises 
to  another  company.  Irvin  v.  Turnpike  Co.,  2  Penn.  R.  466  ;  Rogers  v.  Brad- 
shaw,  20  Johns.  735 ;  Backus  v.  Lebanon,  11  N.  H.  R.  19. 

•  Post,  §  231. 

10  Dartmouth  College  v.  Woodward,  4  Wheat.  518. 

vol.  i.  17  *  131 


258  EMINENT   DOMAIN.  §  70. 

corporations,  by  express  words,  or  necessary  implication,  the 
grant  is  irrevocable  and  inviolable.  But  that  the  grant  of  any 
privilege  or  franchise  carries  no  implied  exclusion,  of  similar 
privileges  and  franchises  being  conferred  upon  other  persons, 
natural  or  corporate.11 

8.  The  legislature  may  in  all  instances  determine,  when  and 
where  the  public  necessities  require  additional  facilities,  of  a 
similar  or  analogous  character,  where  the  former  grant  is  not 
exclusive.11 

9.  And  in  some  cases  of  exclusive  and  perpetual  grants,  for 
common  highways  or  bridges,  it  has  been  held,  that  this  did  not 
preclude  the  legislature  from  granting  railways  and  railway 
bridges  within  the  limits  of  the  former  grant.12  In  the  last  case 
referred  to,  the  court  held,  that  a  perpetual  grant  of  a  toll- 
bridge  across  the  Cape  Fear  River,  which  in  terms  subjected  all 
persons  to  a  penalty  for  transporting  persons  or  property 
across  that  river  in  any  other  manner,  within  six  miles  of  the 
plaintiff's  bridge,  would  not  subject  the  defendants'  company  to 
the  penalty  for  carrying  persons  and  property  across  the  river, 
upon  their  road,  by  means  of  a  bridge  erected  within  the  six 
miles ;  that  the  grant  was  intended  to  be  exclusive  only,  as  to 
all  modes  of  travel  and  *  transportation  then  known,  but  not  to 
exclude  all  improvements  thereon,  in  all  future  time.13 

10.  But  the  exclusive  character  of  a  corporate  grant  will  not 
preclude  the  power  to  take  the  franchise,  upon  making  compen- 
sation, under  the  right  of  eminent  domain,  the  stipulation  in  the 
charter,  that  the  grant  shall  be  exclusive  of  all  others,  being  sub- 
ject to  the  same  law  of  other  property,  whether  in  possession  or 
action ;  all  which  is  confessedly  subject  to  the  exercise  of  the 
right  of  eminent  domain,  by  the  sovereign.11 

11  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420;  Thorpe  v.  Rut.  & 
Bur.  Railw.,  27  Vt.  R.  140  ;  Boston  &  Lowell  Railw.  v.  Salem  &  Lowell  Railw., 
2  Gray,  1 ;  Mohawk  Bridge  Co.  v.  Utica  &  Seh.  Railw.,  6  Paige,  554  ;  Hudson 
&  Delaware  Canal  Co.  v.  New  York  &  Erie  Railw.,  9  Paige,  323. 

13  McRee  v.  "Wilmington  &  Raleigh  Railw.,  2  Jones  Law,  18G.  But  see  En- 
field Bridge  Co.  v.  Hartford  &  New  H.  Railw.,  17  Conn.  R.  40,  454. 

13  But  this  distinction  is  certainly  not  attempted  to  be  maintained,  jn  the  ma- 
jority of  the  cases  upon  this  subject,  either  in  England  or  in  this  country.  Post, 
§  231  et  seq. 

14  Enfield  Toll  Bridge  Co.  v.  Hartford  &  New  Haven  Railw.,  17  Conn.  R. 

*  132 


§  70.  CORPORATE   FRANCHISES   CONDEMNED.  259 

11.  It  has  sometimes  been  characterized,  as  a  refinement  or 
an  invasion,  to  identify  the  covenant,  in  the  charter  of  a  private 
corporation,  that  the  grant  shall  be  exclusive  of  all  others,  with 
the  charter  itself,  and  thus  subject  it  to  the  law  of  eminent  do- 
main. But  it  seems  to  us  entirely  a  sound  view,  in  all  cases 
where  the  whole  franchise  of  the  corporation  is  proposed  to  be 
taken,  and  that  the  charge  of  refinement  is  rather  to  be  laid  at 
the  door  of  such  as  attempt  to  raise  a  distinction  between  the 
exclusiveness  of  the  grant  and  the  grant  itself,  in  order  to  pre- 
serve the  inviolability  of  the  former,  which  is  the  lesser  and  sub- 
ordinate franchise,  when  the  latter,  and  paramount,  and  vital 
franchise  of  a  corporation  is  confessedly  subject  to  the  law  of 
eminent  domain.15 

12.  It  is  intimated  in  West  River  Bridge  Company  v.  Dix,  by 
Woodbury,  J.,  that  if  the  charter  of  the  corporation  contained 
an  express  stipulation  against  the  exercise  of  the  right  of  emi- 
nent domain  upon  the  corporation,  this  might  secure  the  fran- 
chise.    But  this  is  certainly  not  the  prevailing  opinion.16 

40  and  454.  This  doctrine  has  been  so  repeatedly  asserted  in  all  the  courts  of 
the  country,  that  it  seems  scarcely  requisite  to  multiply  references.  And  the 
right  to  take  the  franchise  of  another  corporation,  by  parity  of  reason,  carries 
the  right  to  impair  another  franchise  to  any  extent,  upon  making  indemnity. 
Matter  of  Kerr.  42  Barb.  119. 

15  West  River  Bridge  Co.  v.  Dix,  16  Vt.  R.  446  ;  s.  c.  6  Howard  (U.  S.), 
507,539,  Opinion  of  Woodbury,  J.  :  who  argues  that  it  is  difficult  to  compre- 
hend why  the  exclusiveness  of  the  grant  to  a  private  coloration  should,  upon 
principle,  be  any  more  inviolable  by  legislative  authority  than  any  other  part 
of  the  corporate  franchise.  It  is  only  as  property  that  it  is  valuable,  or  that 
it  is  protected  at  all.  And  all  property  is,  in  cases  of  proper  necessity,  subject 
to  the  law  of  eminent  domain.  It  is  very  questionable  whether  this  law  should 
be  held  to  extend  to  those  portions  of  public  works  which  may  always  be  obtained 
in  the  market,  and  where,  by  consequence,  there  is  no  practical  necessity. 

18  In  regard  to  the  right  of  eminent  domain,  it  seems  now  to  be  conceded,  that 
no  legislature,  upon  any  consideration  or  pretence  whatever,  can  deprive  a  fu- 
ture legislature  of  its  exercise,  in  the  absolute  annihilation  of  corporate  fran- 
chises, upon  just  and  adequate  compensation.  In  Backus  v.  Lebanon,  11  N. 
Hamp.  R.  19,  Parker,  Ch.  J.,  says  :  "Had  the  charter  contained  an  express 
stipulation,  that  the  property  of  the  corporation  should  never  be  taken,  in  the 
exercise  of  the  power  of  eminent  domain,  the  question  would  at  once  have  arisen, 
whether  it  was  competent  for  any  legislature  to  make  a  contract  of  that  char- 
acter ;  whether  any  legislature  has  authority,  by  contract,  to  lay  restrictions 
upon  this  power."     And  reference  is  here  made  to  Piscataqua  Bridge  v.  New 


260  EMINENT   DOMAIN.  §  70. 

13.  The  fee  of  the  streets  of  a  city,  where  it  has  been  ac- 
quired by  the  municipality  under  the  right  of  eminent  domain, 

Hampshire  Bridge,  7  N.  Hamp.  R.  35,  69,  as  containing  the  views  of  the  court 
upon  the  subject.  See  also  Brewster  v.  Hough,  10  N.  Hamp.  R.  138  ;  Northern 
Railw.  v.  Concord  &  Claremont  Railw.,  7  Foster,  183,  195. 

The  remarks  of  the  late  Professor  Greenleaf,  in  his  addition  of  Cruise,  vol.  2, 
tit.  27,  §  29,  in  note,  p.  67,  68,  upon  this  important  subject,  seem  altogether 
worthy  of  commendation,  and  their  insertion  here  will  require  no  apology.  "  But 
in  regard  to  the  position,  that  the  grant  of  the  franchise  of  a  ferry,  bridge,  turn- 
pike, or  railroad,  is  in  its  nature  exclusive,  so  that  the  state  cannot  interfere  with 
it  by  the  creation  of  another  similar  franchise,  tending,  materially  to  impair  its 
value,  it  is  with  great  deference  submitted,  that  an  important  distinction  should 
be  observed  between  those  powers  of  government  which  are  essential  attributes 
of  sovereignty,  indispensable  to  be  always  preserved  in  full  vigor,  such  as  the 
power  to  create  revenues  for  public  purposes,  to  provide  for  the  common  defence, 
to  provide  safe  and  convenient  ways  for  the  public  necessity  and  convenience, 
and  to  take  private  property  for  public  uses,  and  the  like,  and  those  powers 
which  are  not  thus  essential,  such  as  the  power  to  alienate  the  lands  and  other 
property  of  the  state,  and  to  make  contracts  of  service,  or  of  purchase  and  sale, 
or  the  like.  Powers  of  the  former  class  are  essential  to  the  constitution  of  so- 
ciety, as  without  them  no  political  community  can  well  exist ;  and  necessity  re- 
quires that  they  should  continue  unimpaired.  They  are  intrusted  to  the  legis- 
lature to  be  exercised,  not  to  be  bartered  away ;  and  it  is  indispensable  that 
each  legislature  should  assemble  with  the  same  measure  of  sovereign  power  which 
was  held  by  its  predecessors.  Any  act  of  the  legislature,  disabling  itself  from 
the  future  exercise  of  powers  intrusted  to  it  for  the  public  good,  must  be  void,  be- 
ing in  effect  a  covenant  to  desert  its  paramount  duty  to  the  whole  people.  It  is 
therefore  deemed  not  competent  for  a  legislature  to  covenant,  that  it  will  not 
under  any  circumstances  open  another  avenue  for  the  public  travel  within  cer- 
tain limits,  or  a  certain  term  of  time  ;  such  covenant  being  an  alienation  of  sov- 
ereign powers  and  a  violation  of  public  duty. 

"  But  if,  in  order  to  provide  suitable  public  ways,  the  state  has  availed  itself  of 
private  capital,  and  secured  its  reimbursement  by  the  grant  of  a  charter  of  incor- 
poration, with  the  right  to  take  tolls  for  a  limited  period  ;  and  the  public  necessity 
should  afterwards  require  the  creation  of  another  way,  the  opening  of  which 
would  diminish  the  profits  of  the  first,  and  so  prevent  the  corporators  from  receiv- 
ing the  compensation  intended  to  be  secured  to  them  ;  the  state,  thus  sacrificing 
the  private  property  of  the  corporation  for  public  uses,  would  unquestionably  be 
bound,  as  a  sacred  moral  duty,  to  make  full  indemnity  therefor  in  some  other 
mode. 

"  All  those  grants  of  franchises,  therefore,  which  are  in  derogation  of  the  es- 
sential attributes  of  sovereignty  above  mentioned,  are  to  be  construed  strictly  ; 
and  nothing  is  to  be  taken  by  implication.  It  was  on  this  ground  that  the  case 
of  the  Warren  Bridge  was  decided.  The  legislature  had  granted  a  charter  for 
the  building  of  the  Charles  River  Bridge,  with  the  right  of  receiving  tolls,  and 


§  70.  CORPORATE  FRANCHISES  CONDEMNED.  261 

becomes  a  public  trust  for  general  public  purposes,  and  is  under 
the  unqualified  control  of  the  legislature,  and  any  legislative  ap- 
propriation of  it  to  public  use  is  not  be  regarded  as  the  appro- 
priation of  private  property,  so  as  to  require  compensation  to  the 
city  or  municipality  to  render  it  constitutional.17  The  mere  pos- 
sibility of  reverter  to  the  original  owner,  or  his  heirs  or  grant- 
upwards  of  forty  years  afterwards,  the  public  exigency  requiring  another  and 
free  avenue  between  the  same  places,  an  act  was  passed  authorizing  the  erection 
of  the  Warren  Bridge,  a  few  rods  from  the  former,  the  opening  of  which,  as  a 
natural  consequence,  reduced  the  tolls  of  the  former  to  a  very  small  amount.  And 
this  act  was  held  to  be  not  unconstitutional.  Charles  River  Bridge  v.  Warren 
Bridge,  11  Peters,  420,  cited,  and  its  reasoning  affirmed,  in  Butler  v.  Pennsyl- 
vania, 10  How.  (S.  C.)  402  (1850)  ;  Woodfolk  v.  Nashville,  &e.  Railw.  Co.,  1 
Am.  L.  Reg.  520.  [See  also  Matter  of  Hamilton  Avenue,  14  Barb.  Sup.  Ct 
405  ;  Illinois  and  Michigan  Canal  v.  Chicago  and  R.  I.  Railw.  Co.,  14  111.  R. 
314  ;  Rundle  v.  The  Delaware  and  R.  Canal  Co.,  14  How.  (U.  S.)  80;  13  lb. 
71  ;  10  lb.  511,  541  ;  Shorter  v.  Smith,  9  Ga.  R.  517.] 

"  The  learned  chancellor  Kent,  in  a  note  appended  to  the  case  of  11  Pet.  420, 
deeply  regrets  that  decision,  concurring  in  the  opinion  of  Mr.  Justice  Story,  who 
dissented  from  it.  But  against  the  weight  of  the  opinion  of  this  great  judge  may 
be  placed  that  of  the  late  Chief  Justice  Marshall,  the  writer  having  been  in- 
formed, as  a  fact  within  the  personal  knowledge  of  the  informant,  that  the  chief 
justice  held  the  charter  of  Warren  Bridge  constitutional,  upon  the  first  argument 
of  the  cause  ;  and  that  it  was  on  account  of  this  division  of  the  bench  that  a  sec- 
ond argument  was  ordered,  which  he  did  not  live  to  hear.  And  it  is  worthy  of 
notice,  in  this  connection,  that  Mr.  Justice  Story,  in  delivering  his  dissenting 
opinion  in  the  same  term,  in  the  case  of  Briscoe  v.  The  Bank  of  the  Common- 
wealth of  Kentucky,  11  Pet.  328,  supports  it  by  referring  to  a  similar  opinion 
held  by  the  late  chief  justice,  upon  the  former  argument  of  that  cause  ;  while  in 
the  case  of  Warren  Bridge  no  such  support  is  invoked ;  doubtless  for  the  reason 
that  it  could  not  be  had. 

"  The  state  being  bound  in  good  faith,  as  already  stated,  to  make  full  and  com- 
plete indemnity  to  individuals,  whose  private  rights,  in  the  exercise  of  its  eminent 
domain,  it  has  been  obliged  to  sacrifice  for  the  general  good,  the  question  is  re- 
duced to  the  mode  of  compensation  ;  whether  actual  payment  of  the  damages 
must  precede  or  accompany  the  act  of  the  state  ;  or  wdiether  the  individual  ought 
to  have  at  least  a  compulsory  remedy  at  law  ;  or  whether  the  pledge  of  public 
faith  is  a  sufficient  security.  On  this  subject  various  opinions  are  held.  See  2 
Kent,  Comm.  338-440,  and  note  (c)  on  p.  339,  5th  ed. ;  11  Pet.  471,472,  G42, 
643;  The  People  v.  White,  4  Law  Rep.  (n.  s.)  177."  See  also,  to  the  same 
effect,  the  opinion  of  Mr.  Justice  Grier,  of  the  United  States  Circuit  Court,  in 
Milnor  v.  The  New  J.  Railw.,  6  Law  Reg.  G,  7  ;  and  Crosby  v.  Hanover,  20 
Law  Rep.  G4G  ;  s.  c.  36  N.  H.  R.  404. 

17  People  v.  Kerr,  27  N.  Y.  R.  188.  See  arso  Philadelphia  &  Reading  Railw. 
v.  City  of  Philadelphia,  47  Penn.  St.  325. 


262 


EMINENT   DOMAIN. 


§71. 


ees,  is  not  regarded  in  such  cases  as  any  appreciable  interest  re- 
quiring to  be  compensated.17 

*SECTION    ij{ 
Compensation.  —  Mode  of  Estimating. 


1.  General  inquiry  simple. 

2.  Remote  damage  and  benefits  not  to  be  con- 

sidered. 

3.  General  rule  of  estimating  compensation. 

4.  Prospective  damages  assessed. 

5.  In  some  states  value  "in  money"  is  re- 

quired. 

6.  7.  Damage  and  benefits  cannot  be  consid- 

ered in  such  cases. 

8.  Rule  of  the  English  statute. 

9.  Farm  accommodations. 

10.  Benefits  and  damage,  if  required,  must 
be  stated. 


n.  10.   Course  of  the  trial  in  estimating  land 
damages. 

1 1 .  Items  of  damages  not  indispensable  to  be 

stated. 

12.  In  contracts  for  land  statutory  privileges 

must  be  stated  to  be  secured. 

13.  Questions  of  doubt  referred  to  experts. 

14.  Special  provisions  as  to  crossing  streets 

only  permissive. 

15.  In  an  award  of  farm  accommodations 

time  of  the  essence  of  the  award. 


§71.  1.  The  inquiry  in  regard  to  what  compensation  shall  be 
made,  for  land  taken  for  public  works,  would,  on  the  face  of  it, 
*  seem  to  be  a  very  simple  one.  One  would  naturally  suppose 
the  value  of  the  land  taken  or  the  damage  sustained,  to  be  the 
fair  *  measure  of  compensation,  and  that  there  could  be  no  seri- 
ous difficulty  in  ascertaining  the  amount. 

2.  But  in  consequence  of  numerous  ingenious  speculations  in 
regard  to  possible  advantages  and  disadvantages  arising  from 
the  public  works,  for  which  lands  are  taken,  the  whole  subject 
has  become,  in  this  country  especially,  involved  in  more  or  less 
uncertainty.  All  the  cases  seem  to  concur  in  excluding  mere 
general  and  public  benefit,  in  which  the  owner  of  land  shares  in 
common  with  the  rest  of  the  inhabitants  of  the  vicinity,  from 
being  taken  into  consideration  in  estimating  compensation. 

3.  It  has  been  said,  the  appraisers  are  not  to  go  into  conjec- 
tural and  speculative  estimations  of  consequential  damages,1  but 

1  Meacharn  v.  Fitchburg  Railw.,  4  Cusb.  291  ;  Upton  v.  South  Reading 
Branch  Railw.  Co.,  8  Cusli.  GOO;  Albany  N.  Railw.  Co.  v.  Lansing,  1G  Barb. 
68  ;  Canandaigua  &  N.  Railw.  v.  Payne,  16  Barb.  273  ;  Greenville  &  C.  Railw. 
Co.  v.  Partlow,  5  Rich.  428;  White  v.  Charlotte  &  S.  C.  Railw.  Co.,  G  Rich. 
47;  A.  &  S.  Railw.  Co.  v.  Carpenter,  14  Illinois  R.  190;  Syrnonds  v.  The 
*133-135 


§71.  COMPENSATION.  —  MODE   OF   ESTIMATING.  263 

confine  themselves  to  estimating  the  value  of  the  land  taken  to 
the  owner.  This  is  most  readily  and  fairly  ascertained,  by  de- 
termining the  value  of  the  whole  land,  without  the  railway,  and 
of  the  portion  remaining  after  the  railway  is  built.  The  differ- 
ence is  the  true  compensation  to  which  the  party  is  entitled.2 

*  4.  But  the  appraisers  are  to  assess  all  the  damages,  present 
and  prospective,  to  which  the  party  will  ever  be  entitled,  by  the 
prudent  construction  and  operation  of  the  road.3 

City  of  Cincinnati,  14  Ohio  R.  147;  Brown  v.  Cincinnati,  Id.  541;  Mclntire 
v.  State,  5  Blackford,  384  ;  State  v.  Digby,  5  Blackf.  543;  James  River  &  Kan- 
awha Co.  v.  Turner,  9  Leigh,  313;  Schuylkill  Co.  v.  Thoburn,  7  Serg.  &  R. 
411.  A  jury  may  take  into  the  account,  in  estimating  the  damages,  the  effect 
the  construction  of  the  railway  will  have  in  diminishing  deposits  of  sediment, 
which  had  been  made  by  a  river,  in  high  water  flowing  upon  the  land  and 
greatly  enriching  it.  Concord  Railw.  v.  Greeley,  3  Foster,  237.  And  the  de- 
terioration of  the  adjacent  parts  of  the  same  land,  (but  which  are  not  taken,) 
either  for  agriculture,  or  sale  for  building  lots ;  by  risk  from  fire,  care  of  family 
and  stock,  inconvenience  caused  by  embankments,  excavations,  and  obstructions 
to  the  free  use  of  buildings,  is  to  be  taken  into  the  account,  in  estimating  dam- 
ages. Somerville  &  E.  Railw.  v.  Doughty,  2  Zab.  495.  The  increase  or  de- 
crease in  the  price  of  the  remaining  land,  and  the  expense  of  fencing,  are  to  be 
taken  into  the  account,  in  assessing  compensation.  Greenville  &  Columbia 
Railw.  v.  Partlow,  5  Rich.  428.  The  value  of  the  land  taken,  considering  its  re- 
lation to  the  land  from  which  it  is  severed,  is  to  be  given,  and  such  further  sum 
as  the  incidental  injury  to  the  land  not  taken,  from  the  construction  of  the  road, 
exceeds  the  incidental  benefits.  Nashville  Railw.  v.  Dickerson,  17  B.  Mon.  173, 
180.     Louisville  &  Nash.  Railw.  v.  Thompson,  18  Id.  735. 

2  Troy  &  Boston  Railw.  v.  Lee,  13  Barb.  169,  171;  Matter  of  F  Street,  17 
Wend.  649;  Canal  Co.  v.  Archer,  9  Gill  &  J.  480;  Parks  v.  City  of  Boston, 
15  Pick.  198 ;  Somerville  Railw.  v.  Doughty.  2  Zab.  495.  But  no  account  is  to 
be  taken,  in  estimating  land  damages,  of  the  benefit  the  railway  may  have  been 
to  other  property  of  the  plaintiff,  disconnected  with  that  taken.  Railw.  v.  Gil- 
son,  8  Watts,  243  ;  but  see  Columbus,  P.  &  I.  Railw.  v.  Simpson,  4  Law  Re<*. 
696 ;  s.  C.  5  Ohio  St.  251  ;  Rochester  &  Sy.  Railw.  v.  Budlong,  6  How.  Pr.  467  ; 
Sater  v.  B.  &  Mt.  PI.  Railw.,  1  Clarke,  386.  The  value  of  the  land,  at  the  time 
of  trial,  or  at  any  time  subsequent  to  the  construction  of  the  work,  cannot  be 
referred  to  in  determining  the  benefits  conferred  upon  that  portion  of  the  land 
not  taken.     Ind.  Central  R.  v.  Hunter,  8  Ind.  R.  74. 

3  Dearborn  v.  Boston,  Concord,  &  Montreal  Railw.  Co.,  4  Foster,  179.  Clark 
v.  Yt.  &  Canada  Railw.,  28  Vt.  R.  103.  The  expense  of  fencing  is  to  be  in- 
cluded in  the  estimate  of  land  damages.  Winona  &  St.  Peter  Railw.  Co.  v. 
Denman,  10  Minn.  R.  267.  The  matter  of  estimating  land  damages  to  the 
owner  of  a  farm,  a  portion  of  which  is  taken  for  the  construction  of  a  railway,  is 

*136 


264  EMINENT   DOMAIN.  §  71- 

5.  Some  of  the  state  constitutions  in  terms  provide,  that  com- 
pensation for  private  property,  taken  for  public  use,  shall  be 
made  "  in  money,"  and  many  eminent  jurists  have  strenuously 
maintained  that  compensation,  to  the  extent  of  the  value  of  the 
land  taken,  must  always  be  made  in  money,  and  that  no  deduc- 
tion can  be  made,  on  account  of  any  advantage  which  is  likely 
to  accrue  to  other  property  of  the  owner,  by  reason  of  the  public 
work,  for  which  the  property  is  taken.4  Such  accidental  advan- 
tages to  the  portion  of  land  not  taken  as  drainage  by  means  of 
cuts  in  the  soil  from  grading  the  railway  cannot  be  taken  into 
account.6 

6.  In  a  late  case  in  Vermont  the  court  held,  that  taking  land 
for  a  public  highway  is  not  appropriating  it  to  public  use,  within 
the  meaning  of  the  constitution  of  that  state,  which  requires 
compensation  in  such  cases  to  be  made  "  in  money,"  but  that 
this  provision  only  applies,  where  the  fee  of  the  land  is  taken ; 
and  that  where  an  easement  only  is  taken  for  the  purpose  of  a 
highway,  and  the  remaining  land  is  worth  more  than  the  whole 

discussed  very  much  in  detail  and  with  a  very  considerate  regard  to  the  equita- 
ble interests  of  all  parties  in  the  case  of  Robbins  v.  Milw.  &  Hor.  Railw.  Co., 
6  Wis.  R.  636.  Damages  done  to  mill  property  in  lessening  the  advantages  of 
the  water-power,  present  and  prospective,  should  be  taken  into  the  account  in 
estimating  land  damages.  Dorian  v.  E.  Br.  &  Waynesburg  Railw.  Co.  46  Penn. 
St.  520. 

4  2  Kent,  Comm.  7th  ed.  394  and  note ;  Jacob  v.  The  City  of  Louisville,  9 
Dana,  114  ;  The  People  v.  The  Mayor  of  Brooklyn,  6  Barb.  (S.  C.)  209.  But 
this  last  case  was  subsequently  reversed  in  the  Court  of  Appeals.  4  Comst. 
419;  Rice  v.  Turnpike  Co.,  7  Dana,  81;  Woodfolk  v.  N.  &  C.  Railw.,  2  Swan, 
422.  In  this  case,  it  was  said,  benefits  to  the  remaining  land  may  be  set  off 
against  injury,  but  the  party  cannot  be  compelled  to  apply  such  benefits  towards 
the  price  of  his  land.  Railway  v.  Lagarde,  10  Louis.  Ann.  150.  Under  such  a 
provision  in  the  constitution  of  Ohio,  it  was  held,  that  in  assessing  damages,  the 
jury  had  no  right  to  take  into  consideration  the  fact,  that  the  value  of  the  land 
had  been  increased  by  the  proposal,  or  construction  of  the  work.  Giesy  v.  Cin. 
Wil.  &  Zanesv.  Railw.,  4  Ohio  St.  308.  General  benefits  resulting  from  the 
erection  of  a  railway,  to  all  who  own  property  in  the  vicinity,  are  not  to  be  taken 
into  the  account,  in  estimating  land  damages;  and  it  was  doubted  if  special  bene- 
fits, accruing  to  the  remainder  of  the  land,  could  be  so  taken  into  account.  Lit- 
tle Miami  Railw.  v.  Collett,  6  Ohio  State,  182.  Pacific  Railw.  v.  Chrystal, 
25  Mo.  R.  544. 

5  Evansville  and  C.  Railw.  v.  Fitzpatrick,  10  Ind.  R.  120;  Same  v.  Cochran, 
Id.  560. 


§  71.  COMPENSATION.  —  MODE   OF   ESTIMATING.  265 

was  before  the  laying  out  of  the  road,  the  party  is  entitled  to  no 
compensation.6 

*  7.  This  is  certainly  not  in  conformity  with  the  general 
course  of  decision  upon  this  subject.  It  is  the  only  case,  proba- 
bly, where  an  attempt  is  made  to  escape  from  such  a  constitu- 
tional provision,  in  this  manner.  Some  will  doubtless  regard  it 
as  too  refined  to  be  sound.  And  if  it  is  true,  as  is  sometimes 
claimed,  that  the  legislature  had  no  right  to  resume  the  fee  of 
land  for  highways  and  railways,  such  a  constitutional  provision, 
with  such  a  construction,  would  have  little  application  to  the 
taking  of  land  for  such  uses.7 

6  Livermore  v.  Jamaica,  23  Vt.  R.  361.  This  case  has  been  questioned.  1 
Bennett's  Shelford  on  Railways,  441.  See  also  Reitenbaugh  v.  Chester  Valley 
Railw.,  21  Penn.  St.  100.  Contra,  McMahon  v.  Cincinnati  Railw.,  5  Ind.  R. 
413  ;  3  Id.  543.  Benefits  arising  to  the  owner  of  the  land  "  by  the  construction 
of  the  road  "  held  not  to  have  reference  to  the  whole  work,  but  to  that  particu- 
lar portion  which  runs  through  the  party's  land.  Milwaukee  &  Mis.  R.  v.  Eble, 
4  Chand.  72.  An  act  which  provides  for  setting  off  the  advantages  to  other 
land  against  the  value  of  the  land  taken,  is  not,  on  that  account,  unconstitu- 
tional. McMasters  v.  Commonwealth,  3  Watts,  292.  But  it  has  very  often 
been  held,  that  such  accidental  advantages,  especially  where  they  are  not  pecu- 
liar to  the  particular  land-owner,  cannot  be  set  off  against  the  specific  value  of 
the  land  taken.  State  v.  Miller,  3  Zab.  383  ;  Woodfolk  v.  Nash.  &  Ch.  Railw., 
2  Swan,  422;  Hill  v.  M.  &  H.  Railw.,  5  Denio,  206;  Keasy  v.  Louisville,  4 
Dana,  154;  Sutton  v.  Louisville,  5  Dana,  28  ;  People  v.  Mayor  of  B.,  6  Barb. 
209.  But  many  cases  hold  the  contrary.  People  v.  Mayor  of  Brooklyn,  4 
Comst.  419,  where  s.  c.  6  Barb.  209,  is  reversed;  Rexford  v.  Knight,  15  Barb. 
627.  But  where  profits  are  to  be  taken  into  the  account,  the  title  to  have  them 
considered  obtains,  at  the  time  the  servitude  is  located.  Palmer  Co.  v.  Ferrill, 
17  Pick.  58.  Benefits  by  increase  of  business  and  population,  markets,  schools, 
stores,  and  other  like  improvements,  cannot  be  considered,  in  estimating  damages, 
for  flowing  land,  by  a  mill-dam.     lb. 

In  a  recent  case  in  New  Hampshire,  petition  of  the  Mount  Washington  Road 
Company,  35  N.  H.  R.  134,  it  was  decided,  that  in  assessing  damages  for  land 
taken  for  a  turnpike,  or  free  highway,  compensation  is  to  be  given  for  the  actual 
value  of  the  land  taken,  without  regard  to  any  speculative  advantages  or  dis- 
advantages to  the  owner  from  the  making  of  the  highway.  See  Cushman  v. 
Smith,  34  Maine  R.  247.  But  in  Indiana  Central  Railw.  v.  Hunter,  8  Ind.  R. 
74,  the  same  rule  is  adopted,  as  in  the  case  first  cited  in  this  note. 

7  Hatch  v.  Vermont  Central  Railw.  Co.,  25  Vt.  R.  49;  Reitenbaugh  v. 
Chester  Valley  Railw.,  21  Penn.  St.  100.  Contra,  Little  Miami  Railw.  v.  Nay- 
lor,  2  Ohio  R.  N.  S.  235.  And  in  a  case  in  Mississippi,  Brown  v.  Beatty,  34  Miss. 
R.  227,  where  the  constitution  required  "  compensation  first  to  be  made  "  for  land 

*137 


266  EMINENT   DOMAIN.  §  71. 

8.  The  English  statute  provides,  that,  in  estimating  compensa- 
tion for  land  damages  "  regard  shall  be  had  not  only  to  the  land 
taken,  but  also  to  damage,  by  reason  of  severance  from  other 
lands,  or  otherwise  injuriously  affecting  such  lands."  There  are, 
too,  in  the  English  statute,  provisions  for  compensation  to  sun- 
dry subordinate  interests  in  lands,  as  to  lessees  for  years,  and  to 
tenants  from  year  to  year.  And  also  in  regard  to  mines.  The 
company  are  not  entitled  to  mines  or  minerals  under  lands,  ex- 
cept such  parts  as  shall  be  necessary  to  use  in  the  construction 
of  the  road,  unless  expressly  purchased.  It  has  been  held  that 
stone  got  from  quarries  are  *  minerals,8  and  that  mines  are  quar- 
ries, or  places  where  anything  is  dug.9     By  the  English  statute, 

taken,  it  was  held  the  provision  secured  to  the  owner  the  right  to  receive  the 
cash  value  in  money,  and,  in  addition,  full  indemnity  for  all  damages  by  means 
of  severance,  and  that  no  enhanced  value  of  the  portion  of  land  not  taken  could 
be  taken  into  the  account.     See  also  Branson  v.  Philadelphia,  47  Penn.  St.  329. 

Henry  v.  Dubuque  &  Pacific  Railw.  Co.,  10  Iowa,  540.  It  is  said  in  one  case, 
what  is  very  nearly  a  truism,  that  corporate  existence  and  the  right  of  eminent 
domain  can  only  be  derived  from  legislative  grant,  and  that  both  must  be  shown 
to  justify  taking  lands  compulsorily,  and  also  compliance  with  all  conditions  of 
the  grant,  Atkinson  v.  Marietta  &  Cin.  Railw.  Co.,  15  Ohio  St.  21.     Post,  §  76. 

The  dedication  of  land  to  the  use  of  a  street  will  not  authorize  the  legislature 
to  appropriate  it  to  the  use  of  a  railroad  track  without  compensation  to  the 
owner,  and  if  this  is  attempted  it  may  be  restrained  by  injunction.  Schurmeier 
v.  St.  Paul  &  P.  Railw.,  10  Minn.  R.  82.  And  in  Whitman  v.  Boston  &  Maine 
Railw.,  3  Allen,  133,  it  was  decided  that  if,  by  means  of  the  location  of  a  railway 
over  a  part  of  a  lot  of  land,  and  the  filling  up  of  a  canal  in  which  the  owner  had 
a  privilege,  the  value  of  the  lot  was  so  enhanced  that  what  remained  was  worth 
more  than  the  entire  lot  was  before,  the  owner  had  no  claim  for  damages,  —  proof 
of  all  the  business  done  upon  land  is  not  competent  to  show  its  value.     lb. 

8  Micklethwait  v.  Winter,  5  Eng.  L.  &  Eq.  526. 

9  Hodges  on  Railways,  238,  note  (y).  The  more  common  mode  of  estimating 
land  damages  unquestionably  is,  to  give  the  company  the  specific  benefit  caused 
to  land,  a  portion  of  which  is  taken,  in  the  enhancing  the  value  of  the  same,  and 
only  to  allow  the  land-owner  such  a  sum  as  will  leave  him  as  well  off"  in  regard 
to  the  particular  land  as  if  the  works  had  not  been  built,  or  his  land  taken. 
This  is  done  by  giving  the  land-owner  a  sum  equal  to  the  difference  between 
what  the  whole  land  would  have  sold  for  before  the  road  was  built,  and  what  the 
remainder  will  sell  for  after  the  construction.  Harvey  v.  Lack.  &  Bloomsburg 
Railw.,  47  Penn.  St.  428.  But  this  rule  will,  in  many  cases,  prove  entirely  in- 
adequate and  unsatisfactory,  and  where  it  has  been  adopted  it  may  be  regarded 
as  only  extending  to  other  cases  of  a  very  similar  character.  Win.  &  St.  Peters' 
Railw.,  v.  Denman,  10  Minn.  R.  267. 

*138 


§  71.  COMPENSATION.  —  MODE   OF   ESTIMATING.  267 

the  company  may  remove  or  displace  gas  or  water  pipes,  making 
compensation  to  all  parties  injured. 

9.  And  where  commissioners  appraise  the  damages  upon  the 
basis  of  the  railway  making  and  maintaining  certain  works  for 
the  accommodation  of  the  land-owner,  as  a  culvert  and  waste- 
way,  etc.,  it  was  held  this  portion  of  the  award  was  not  void,  but 
if  acquiesced  in  by  the  company,  and  the  land  taken,  and  com- 
pensation made  upon  that  basis,  they  thereby  become  bound  by 
its  provisions.10  But  where  it  was  referred  to  arbitration  to  esti- 
mate the  damages  caused  to  the  plaintiff,  and  the  company  by 
the  express  terms  of  its  charter  was  bound  to  make  suitable 
crossings  for  the  accommodation  of  land-owners  through  whose 
land  the  right  of  way  was  taken,  and  the  land-owner  told  the 
agents  of  the  company,  at  the  hearing  before  the  arbitrators, 
that  he  should  require  a  crossing  to  be  provided  for  his  conven- 
ience ;  and  the  agents  claimed  that  the  arbitrators  had  nothing 
to  do  with  this  matter,  and  that  claim  was  acquiesced  in  by  the 
arbitrators  and  the  parties,  and  the  award  only  embraced  the 
damage  to  the  land,  and  subsequently  the  land-owner  was  in- 
duced to  convey  to  the  company  the  right  of  way,  without  an- 
nexing a  condition  binding  the  company  to  maintain  a  crossing 
for  his  accommodation  ;  upon  the  assurance  of  the  counsel  of 
the  company  that  such  deed  would  not  affect  his  right  to  claim 
a  crossing,  it  was  held,  upon  a  bill  to  reform  the  deed  and  to 
establish  his  right  to  the  crossing,  that  he  was  entitled  to  the 
relief  sought,  and  an  injunction  was  granted  accordingly.11 

But  where  a  private  way  crossed  the  line  of  railway  obliquely, 
and  the  award  of  land  damages  only  indicated  the  point  at  which 
the  company  were  to  supply  a  crossing,  it  was  held  a  sufficient 
compliance  with  the  obligation  of  the  company  to  give  a  crossing 
at  right  angles,  although  this  did  not  connect  with  the  termini 
of  the  road  or  afford  any  access  to  it.12 

10.  In  some  of  the  states  in  this  country,  the  advantages  and 
disadvantages  of  taking  land  for  a  railway  are  required  to  be 
stated  in  the  report  of  appraisal,  and  the  omission  to  make  such 

10  Morse,  Petitioner,  18  Pick.  443. 

11  Green  v.  Morris  &  Essex  Eaihv.  Co.,  1  Beasley,  165. 

12  Mann  v.  Great  S.  &  W.  Railw.  Co.,  9  Ir.  Corn.  L.  Rep.  105. 


2G8  EMINENT   DOMAIN.  §  71. 

specific  statement  was  held  a  fatal  omission.13  So  too,  where 
additional  *  expense  of  fencing  is  allowed  in  improved  land,  the 
report  must  specify  that  fact.14 

13  Ohio  &  Pennsylvania  Railw.  v.  Wallace,  14  Penn.  St.  245 ;  Reitenbaugh  v. 
Chester  Valley  Railw.,  21  Penn.  St.  100;  R.  R.  Co.  v.  Gilson,  8  Watts,  243; 
Zack  v.  Penn.  Railw.  Co.,  25  Penn.  St.  394.  But  it  has  been  held,  in  some  cases, 
where  the  advantages  resulting  to  the  land-owner  were  to  be  taken  into  the  ac- 
count, that  the  value  of  the  land  need  not  be  stated  separately  from  the  damage, 
in  an  award  of  arbitrators,  but  only  the  amount  of  the  whole  injury.  At  all 
events,  such  amendments  will  be  allowed,  as  to  cure  such  defects.  Greenville 
&  Columbia  Railw.  v.  Nunnamaker,  4  Rich.  107. 

Questions  have  sometimes  been  made,  in  regard  to  which  party,  in  proceedings 
of  this  character,  is  entitled  to  go  forward,  in  the  proofs  and  argument.  Upon 
principle,  and  in  analogy  to  similar  proceedings  upon  other  subjects,  we  think 
there  can  be  little  doubt  this  right  is  with  the  land-owner,  in  the  proceedings  be- 
fore the  jury  and  the  commissioners  or  arbitrators,  where  he  is  to  all  intents 
actor.  But  after  having  obtained  an  award,  it  has  been  more  usual,  in  practice, 
to  allow  the  excepting  party  to  go  forward.  1  Greenleaf's  Ev.  §§  76,  77  ;  Con- 
necticut River  Railw.  v.  Clapp,  1  Cush.  559  ;  s.  c.  1  Am.  Railw.  C.  450  ;  Mercer 
v.  Whall,  5  Q.  B.  447. 

But  see  Albany  N.  Railw.  Co.  v.  Lansing,  16  Barb.  68,  where  the  court 
say,  "  The  commissioners  have  the  right  and  power  to  exercise  their  own  dis- 
cretion in  reference  to  the  order  that  they  take  in  appraising  the  land.  They  may 
view  the  land  first  and  hear  the  proofs  and  allegations  afterwards,  or  vice  versa. 
So  whether  one  party  or  the  other  should  first  be  heard  is  for  them  to  determine. 
Having  decided  that  the  railway  corporation  might  open  and  close  the  hearing, 
the  defendant  was  concluded  by  their  decision,  as  also  would  their  decision  have 
been  conclusive  on  the  company  had  the  same  privilege  been  awarded  to  the 
owner  of  the  land."  But  where  the  error  in  the  exercise  of  this  discretion  does 
manifest  wrong,  at  nisi  prius,  the  verdict  will  be  set  aside  for  this  reason  alone 
in  the  full  bench.     1  Greenleaf's  Ev.  104  and  note,  §  76. 

But  awards  of  land  damages  have  been  set  aside  for  excessive  damages.  Somer- 
ville  &  Easton  Railw.  v.  Doughty,  2  Zab.  495.  But  this  subject  was  somewhat 
considered  in  Troy  &  Boston  Railw.  v.  Lee,  13  Barb.  169;  Same  v.  Northern 
Turnpike  Co.,  16  Barb.  100  ;  and  it  was  held  that  such  award  should  not  be  set 
aside,  unless  it  appeared  that  the  commissioners  erred  in  the  principles  by  which 
their  judgment  should  be  guided,  or  were  clearly  mistaken  in  the  application  of 
correct  principles.  This  is  putting  them  much  upon  the  same  ground  as  awards 
in  other  cases.  And  in  Walker  v.  Boston  &  Maine  Railw.,  3  Cush.  1,  it  was 
held,  that  the  common  pleas,  to  whom  the  verdict  of  a  sheriff's  jury  is  to  be 
returned,  and  who  may  set  the  same  aside,  for  any  good  cause,  were  justified  in 
doing  so,  for  irregularity  in  impanelling  the  jury  ;  or  in  the  conduct  of  the  jury  ; 
or  in  the  instructions  given  the  jury  by  the  sheriff;  or  for  facts  affecting  the 

14  New  Jersey  Railw.  v.  Suydam,  2  Harrison,  25. 
*  139 


§  71.  COMPENSATION.  —  MODE   OF  ESTIMATING.  269 

11.  But  in  general  there  is  no  discrimination  made  in  the 
report  estimating  damages  for  taking  land  for  public  works,  be- 
tween the  value  of  the  land  appropriated  and  the  incidental 
injury  from  severance  and  otherwise  ;  and  unless  specially  re- 
quired by  the  charter  of  the  company  or  some  other  legislative 
act,  such  discrimination  does  not  seem  indispensable  to  the 
validity  of  the  report,  but  would  unquestionably,  in  the  major- 
ity of  cases,  tend  to  render  the  report  more  satisfactory.15 

12.  In  contracts  between  railway  companies  and  land-owners, 
in  regard  to  farm  accommodations,  if  the  company  desire  to  re- 
tain any  special  distinction  conferred  by  statute,  they  must  incor- 
porate the  statute,  either  in  terms  or  by  reference,  into  the  con- 
tract. Otherwise  the  company  will  be  held  strictly  to  the  terms 
of  the  contract  as  applied  to  the  subject-matter.16 

13.  Where  there  is  any  controversy  in  regard  to  the  mode  of 
crossing  highways  and  turnpikes  by  railway  companies,  the 
court  will  refer  the  matter  to  men  of  experience  and  skill  in 
such  questions.17  • 

14.  A  permission  in  a  railway  charter  to  cross  a  street  or 
highway  by  a  level  crossing,  by  making  a  bridge  over  the  street 
for  the  accommodation  of  foot  passengers,  is  not  peremptory 
upon  the  company.  They  may  still  be  permitted  to  cross  the 
street  otherwise  than  on  a  level  on  their  undertaking  to  abide  by 
any  order  the  court  might  make  as  to  damagcs.ls 

15.  Where  land  is  sold  to  a  railway  company  upon  condition  of 
furnishing  such  farm  accommodations  as  the  land-owner  should 
notify  to  the  company  within  one  month,  time  is  regarded  as  of 
the  essence  of  the  condition,  and  if  notice  is  not  given  within  the 
time  limited  the  court  will  neither  order  the  company  to  make  such 
accommodations  as  are  demanded,  or  even  such  as  are  proper.19 

purity,  honesty,  or  impartiality  of  the  verdict ;  such  as  tampering  with  the  jury 
or  other  misconduct  of  the  party;  or  any  irregularity  or  misconduct  of  the  jurors. 
But  in  a  court  of  error  the  verdict  can  only  be  set  aside  for  error  appearing  of 
record.  But  see  §  72,  post ;  Nicholson  v.  New  York  &  New  Haven  Kailw.,  22 
Conn.  R.  74. 

15  Trenton  Water  Power  Co.  v.  Chambers,  2  Beasley,  199. 

,s  Clarke  v.  M.  Sh.  &  L.  Railw.  Co.,  1  Johns.  &  H.  631. 

17  Atty.-Genl.  v.  Dorset  Railw.  Co.,  3  Law  T.  N.  S.  608. 

18  Dover  Harbor  v.  L.  C.  &  Dover  Railw.  Co.,  7  Jur.  N.  S.  453. 

19  Darnley  v.  London,  Chatham,  &  Dover  Railw.  Co.,  11  Jur.  N.  S.  520  ;  s.  c. 
9  Id.  148,  where  the  Vice-Chancellor  decided  otherwise. 


270 


EMINENT   DOMAIN. 


§72. 


SECTION    X. 


Mode  of  Procedure. 


Legislature  may  prescribe. 

Must  be  upon  proper  notice. 

Formal  exceptions  waived,  by  appearance. 

Unless  exception  is  upon  record. 

Proper  parties,  those  in  interest. 

Title  may  be  examined. 

Plaintiffs  must  show  joint  interest. 

Jury  may  find  facts  and  refer  title  to  the 

court. 
Land  must  be  described  in  verdict. 
Distinct  finding  on  each  claim. 
Different  interests. 
What  evidence  competent. 
Proof  of  value  of  land.       . 
Opinion  of  witnesses. 


15.  Testimony  of  experts. 

16.  Matters  incajiable  of  description. 

17.  Costs. 

18.  Expenses. 

19.  Commissioners'  fees. 

20.  Appellant  failing  must  pay  costs. 

21.  Competency  of  jurors. 

22.  Power  of  court  to  revise  proceedings. 

23.  Debt  will  not  lie  on  conditiomd  report. 

24.  Excessive  damages  ground  of  setting  aside 

verdict. 
Note.   Other  matters  of  practice. 

25.  JYo  effort  to  agree  required  in  order  to  give 

jurisdiction. 


§  72.  1.  It  seems  to  be  universally  admitted,  that  where  the 
organic  law  of  the  state  does  not  prescribe  the  mode  of  proced- 
ure, in  estimating  land  damages,  for  the  use  of  a  railway  com- 
pany, or  other  public  work,  it  is  competent  for  the  legislature  to 
prescribe  *  the  mode,  and  that  the  mode,  so  prescribed,  must  be 
strictly  followed.1 

2.  Thus,  it  has  been  held,  that  notice  in  writing  to  the  owner 
of  the  land  to  be  taken,  its  situation  and  quantity,  must  be 
given.2  But  the  form  of  the  notice,  or  whether  signed  by  the 
company,  or  by  the  commissioners,  is  not  important.3  And  it  is 
requisite,  not  only  that  proper  notice  should  be  given,  but  that  it 
should  appear  upon  the  face  of  the  proceedings  that  the  partic- 
ular notice  required,  by  the  statute,  was  given.4  But  in  gen- 
eral, we  apprehend,  if  it   appears  upon  the  proceedings  that 

1  Bonaparte  v.  C.  &  A.  Railw.,  Bald.  C.  C.  R.  205  ;  Bloodgood  v.  M.  &  H. 
Railw.,  14  Wend.  51  ;  s.  c.  18  Id.  9  ;  s.  c.  2  Am.  Railw.  C.  415. 

2  Vail  v.  Morris  &  Essex  Railw.,  1  Zab.  189.  But  the  notice  to  appoint  com- 
missioners need  not  describe  the  land,  it  is  held  in  other  cases.  Doughty  v. 
Somerville  &  Easton  Railw.,  Id.  442. 

3  Ross  v.  Elizabethtown  &  Somerville  Railw.,  Spencer,  230. 

4  Van  Wickle  v.  Railw.  Co.,  2  Green,  162.     See  also  Bennet  v.  Railw.,  Id. 

145. 

*  140 


§  72.  MODE   OF   PROCEDURE.  271 

notice  was  given  to  the  land-owner,  it  might,  upon  general  prin- 
ciples, be  presumed  it  was  the  notice  required. 

3.  But  merely  formal  exceptions  to  the  mode  of  procedure, 
and  the  competency  of  the  triers,  in  such  cases,  must  be  taken 
at  the  earliest  opportunity,  where  there  is  an  appearance,  or 
they  will  be  regarded  as  waived.5 

4.  And  after  appeal,  it  should  appear  by  the  record  that 
merely  formal  exceptions  were  made  in  th*  proceedings  below, 
and  overruled,  or  they  cannot  be  revised.5  So,  too,  where  the 
party,  excepting  to  proceedings  before  commissioners,  applies  for 
a  jury  to  revise  the  assessment  of  damages,  it  will  be  regarded  as 
a  waiver  of  the  exceptions.5  He  should  have  applied  for  a  certi- 
orari, if  he  intended  to  revise  the  case  upon  his  exceptions.5 

5.  In  regard  to  the  proper  parties  to  such  proceedings,  almost 
infinite  variety  of  questions  will  arise.  The  only  general  rule 
which  can  be  laid  down,  perhaps,  is,  that  those  having  an  in- 
terest in  the  question,  may  become  parties  plaintiff,  or  be  made 
parties  defendant,  according  to  the  character  and  quality  of  the 
interest.6 

*6.  In  the  English  courts,  it  has  been  held,  that  these  sum- 
mary tribunals  for  estimating  land  damages  are  not  to  inquire 
into  the  title  of  the  claimants.7  But  in  some  cases,  in  this  coun- 
try, it  has  been  held,  that  the  claimant's  title  to  the  land  is  a 

5  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  R.  58 ;  s.  c.  1  Am. 
Raihv.  C.  508 ;  Walker  v.  Boston  &  Maine  Railw.,  3  Cush.  1  ;  Pittsfield  &  North 
Adams  Railw.  v.  Foster,  1  Cush.  480  ;  Field  v.  Vermont  &  Massachusetts  Railw., 
4  Cush.  150;  Taylors.  County  Commissioners,  13  Met.  449;  Porter  v.  County 
Commissioners,  id.,  4  79;  Meacham  v.  Fitchburg  Railw.,  4  Cush.  291;  Davis  v. 
Charles  River  Branch  Railw.,  11  Cush.  506. 

0  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58  ;  Ashby  v.  East- 
ern Raihv.,  5  Met.  368;  Greenwood  v.  Wilton  Railw.,  3  Foster,  261  ;  Parker 
v.  Boston  &  Maine  Railw.,  3  Cush.  107  ;  Mason  v.  Railw.,  31  Me.  R.  215  ;  A.  &  St. 
L.  Railw.  Co.  v.  Cumberland  Co.  Comm.,  51  Me.  R.  36.  And  it  seems  to  be  re- 
garded as  indispensable  that  parties  under  disability  should  be  properly  repre- 
sented in  the  proceedings  the  same  as  in  other  suits.  Hotchkiss  v.  Auburn  & 
Rochester  Railw.,  36  Barb.  600.  But  where  a  demand  and  tender  of  the  value 
of  land  required,  together  with  other  legal  damages,  is  required  before  instituting 
eompulsor)-  proceedings,  the  requirement  cannot  apply  to  the  case  of  an  infant, 
whose  rights  will  be  sacred  till  of  full  age.  Indiana  Central  Railw.  Co.  v.  Oakes, 
20  Ind.  R.  9. 

7  Post,  §  98. 

*  141 


272  EMINENT    DOMAIN.  §  72. 

proper  subject  of  inquiry,  before  the  jury,  in  estimating  dam- 
ages.8 And  where  the  commissioners  refuse  to  allow  the  peti- 
tioner damages,  on  account  of  his  not  being  the  owner  of  the 
land,  this  is  such  a  final  decision  as  may  be  revised  by  a  jury,  and 
the  Supreme  Court  will  allow  a  mandamus,  if  that  is  denied.9 

7.  Parties  who  join  must  show  a  joint  interest  in  the  land, 
but  this  need  not  always  be  shown  by  deed.  Oral  evidence  is 
sometimes  admissible,  where  one  owns  the  fee,  and  others  have 
a  joint  interest,  in  consequence  of  erections,  and  the  jury  may 
properly  pass  upon  the  title,  as  matter  of  fact.10 

8.  But  the  jury  are  not  bound  to  decide  upon  conflicting 
titles,  but  may  report  the  facts,  without  determining  the  own- 
er.11 And  it  has  been  held  that  the  jury  are  not  bound  to  find  a 
special  verdict,  in  regard  to  the  title  of  the  claimant,  or  where 
there  are  conflicting  claims,  but  may  do  so  with  propriety.12 

9.  The  jury  should  describe  the  land  with  intelligible  bounda- 
ries.13 

8  Directors,  &c.  v.  Railw.,  7  Watts  &  Serg.  236.  Allyn  v.  Prov.  W.  &  B. 
Railw.,  4  Rhode  Is.  R.  457. 

9  Carpenter  v.  County  Commissioners  of  Bristol,  21  Pick.  258.  The  trustee 
and  not  the  cestui  que  trust  is  the  proper  party  to  such  proceeding.  Davis  v. 
Charles  River  Branch  Railw.,  11  Cush.  506.  The  title  of  the  petitioner  may  be 
inquired  into,  either  on  the  return  of  the  petition  or  of  the  report.  Church  v. 
Northern  Central  Railw.  Co.,  45  Penn.  St.  339.  The  mode  of  proceeding  on 
certiorari  and  in  other  rights  is  here  discussed. 

10  Ashby  v.  Eastern  Railw.,  5  Met.  368. 

11  Matter  of  Anthony  Street,  19  Wend.  678.  So,  too,  where  one  owns  the  fee, 
and  another  has  a  bond  for  a  deed,  the  condition  of  which  is  not  yet  performed, 
they  may  join.  Proprietors  of  Locks  and  Canals  v.  Nashua  &  Lowell  Railw., 
10  Cush.  385. 

12  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91  ;  1  Am.  Railw.,  C.  534. 
The  sheriff  is  bound  to  give  the  jury  definite  instructions,  in  regard  to  the  effect 
of  a  conveyance.     Id. 

13  Vail  v.  Morris  &  Essex  Railw.,  1  Zab.  189.  But  see  Philadelphia  Railroad 
v.  Trimble,  4  Whart.  4  7.  The  jury  are  not  to  include  in  their  estimate  the  ex- 
pense of  farm  accommodations,  which  it  is  the  duty  of  the  railway  to  furnish.  Id. 
But  if  this  be  done,  and  the  party  have  judgment  on  the  verdict,  he  is  bound  to 
make  the  erections.  Curtis  v.  Vermont  Central  Railw.,  23  Vt.  R.  613.  One 
tenant  in  common  cannot  proceed  in  his  own  name  to  have  the  damages  done, 
by  a  railway,  to  the  common  land,  assessed,  even  where  he  has  authority  from 
his  co-tenant  to  do  so.     Railw.  v.  Bucher,  7  Watts,  33. 

But  if  the  petition  be  signed  by  the  lessee  and  the  agent  of  the  owner  of  mines, 


§  72.  MODE    OF   PROCEDURE.  273 

*  10.  Where  the  claim  for  damages  consists  of  several  items, 
it  is  more  conducive  to  a  final  disposition  of  the  case  to  state 
the  finding  upon  each  item.  In  such  case  any  objectionable 
item  may  be  remitted  or  deducted  without  the  necessity  of  a 
rehearing.14 

11.  But  where  the  petition  alleges  several  distinct  causes  of 
damage,  and  a  general  verdict  is  rendered,  if  one  or  more  of  the 
causes  is  insufficient,  it  will  not  be  presumed  the  jury  gave  any 
damages,  on  such  insufficient  claims,  in  the  absence  of  any  in- 
structions by  the  sheriff  in  relation  to  them.15  But  it  is  not  ne- 
cessary to  apportion  the  damages  to  several  joint-owners,  and  a 
tenant  for  life  may  take  proceedings  to  obtain  damages  done  to 
his  estate  by  the  construction  of  a  railway,  without  joining  the 
remainder-man.16 

12.  The  character  of  the  proof  admitted  to  enable  the  triers 
to  learn  the  value  of  land  is  so  various,  that  it  is  not  easy  to  fix 
any  undeviating  rule  upon  the  subject.  It  seems  to  have  been 
the  intention  of  the  courts  to  allow  only  strictly  legal  evidence 
to  be  received,  such  as  would  be  admissible  in  the  trial  of  simi- 
lar questions  before  a  jury  in  ordinary  cases.17 

13.  It  has  been  allowed  to  show  what  price  the  company  had 
paid  by  voluntary  purchase  for  land  adjoining,  but  in  the  same 
case  it  was  held  not  competent  to  inquire  of  adjoining  land-own- 
ers, who  were  farmers,  and  had  occasionally  bought  and  sold 

this  is  a  sufficient  representation  of  the  interest.  Harvey  v.  Lloyd,  3  Penn.  St. 
331.  See  also  Shoenberger  v.  Mulhollan,  8  Penn.  St.  13'4.  See  also  Cleveland 
&  Toledo  Railw.  v.  Prentice,  13  Ohio  St.  373 ;  Strang  v.  Beloit  &  M.  Railw. 
Co.,  16  Wise.  R.  635.  It  is  here  said  that  the  description,  by  way  of  an  approx- 
imating diagram,  may  be  sufficient  without  an  actual  survey. 

14  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58  ;  S.C.I  Am.  Railw. 
C.  508. 

,&  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107. 

16  Railroad  r.Boyer,  13  Penn.  St.  497  ;  Directors  of  Poor  v.  Railw.,  7  Watts  & 
Serg.  236  ;  Pittsburgh  &  Steuben  Railw.  v.  Hall,  25  Penn.  St.  336.  In  one  case 
it  was  said  to  be  the  duty  of  the  commissioners  to  assess  damages  to  joint  owners, 
jointly.  Ross  v.  Elizabethtown  &  Somerville  Railw.,  Spencer,  230.  See  also 
Colcough  v.  Nashville  &  N.  W.  Railw.  Co.,  2  Head.  171. 

17  Troy  &  Boston  Railw.  v.  Northern  Turnpike  Co.,  16  Barb.  100 ;  Johnson, 
J.,  in  Rochester  &  Syracuse  Railw.  v.  Budlong,  6  How.  Pr.  467 ;  Lincoln  v. 
Saratoga  &  Schenectady  Railw.,  23  Wend.  425,  432. 

vol.  I.  18  *  142 


274  EMINENT   DOMAIN.  §  72. 

land,  what  was  the  value  of  their  own  land  adjoining.18  Nor  is 
it  competent  to  show  for  what  price  one  had  contracted  to  buy 
land  adjoining.19  Nor  can  the  claimant  prove,  what  the  com- 
pany have  offered  him  for  the  land;20  nor  what  the  company 
have  been  *  compelled  to  pay  for  land  adjoining,  which  was  taken 
compulsorily.21 

14.  And  it  has  been  held  that  witnesses  cannot  be  allowed  to 
give  their  opinion  of  the  value  of  the  land  or  materials  taken.22 

18  Wyman  v.  Lexington  &  "West  Cambridge  Railw.,  13  Met.  316. 

19  Chapin  v.  Boston  &  Providence  Railw.,  6  Cush.  422. 

20  Upton  v.  South  Reading  Railw.,  8  Cush.,  600. 

21  White  v.  Fitchburg  Railw.,  4  Cush.  440.  Only  such  damages  as  are  pecu- 
liar to  the  owner  of  the  land  taken,  and  not  those  which  are  common  to  all  land 
in  the  vicinity,  can  be  considered.  Freedle  v.  North  Carolina  Railw.,  4  Jones 
Law,  89.  It  has  been  held  that  the  benefits  resulting  to  the  land-owner  from 
the  construction  of  the  road  are  to  be  deducted,  in  estimating  damages  for  land 
taken  for  a  railway ;  and  that  consequently  a  statute  providing  for  such  deduc- 
tion is  not  thereby  rendered  unconstitutional.    C.  P.  &  Ind.  Railw.  v.  Simpson, 

5  Ohio  St.  251.  But  as  the  constitution  of  this  state  expressly  required  that 
compensation  to  the  land-owner  should  be  made  in  all  cases  when  land  is  taken 
for  public  use  in  money,  it  seems  scarcely  consistent  to  say  that  the  benefits  to 
the  land-owner  can  in  all  cases  be  deducted,  since  in  some  cases  the  benefits  to 
the  particular  piece  of  land,  a  portion  of  which  is  taken,  might  more  than  com- 
pensate for  that  which  is  taken,  thus  leaving  nothing  to  be  compensated  "in 
money." 

The  force  of  this  embarrassment  was  felt  by  the  court  in  a  highway  case  in 
Vermont,  where  the  constitution  requires,  that  "whenever  private  property  is 
taken  for  public  use,  the  owner  ought  to  receive  an  equivalent  in  money."  The 
court  escaped  from  the  embarrassment  here  by  a  device,  which  some  might  pos- 
sibly regard  as  more  ingenious  than  ingenuous,  by  saying,  that  as  the  constitu- 
tion only  applied  to  property  "  taken  for  public  use,"  this  could  not  reach  cases 
where  only  an  easement  in  property  was  taken.  The  court  might,  with  almost 
equal  propriety,  have  said,  that  the  provision  of  the  constitution  "  ought  to  re- 
ceive," being  in  the  optative  mood,  did  not  imply  an  imperative  duty,  as  few  per- 
sons expect  to  obtain  by  process  of  law  all  which  they  "ought  to  receive." 
Livermore  v.  Jamaica,  23  Vt.  R.  361,  Bedfield,  J.  dissenting,  snb  silentio.  Ante, 
§  71,  pi.  6.     See  also  C.  &  P.  Railw.  v.  Ball,  5  Ohio  St.  568 ;  Kramer  v.  Clev. 

6  Pittsb.  Railw.,  Id.  140. 

22  Montgomery  &  West  Point  Railw.  v.  Varner,  19  Ala.  R.  185 ;  Concord 
Railw.  v.  Greely,  3  Foster,  237;  Buffum  v.  New  York  &  Boston  Railw.,  4 
Rh.  I.  R.  221 ;  Cleve.  &  Pittsb.  Railw.  v.  Ball,  5  Ohio  St.  568.  But  the  wit- 
ness may  give  an  opinion  as  to  the  value  of  the  whole  land,  both  before  and 
after  the  location  of  the  road.  lb.  And  so  also  in  Illinois  &  Wisconsin  Railw. 
v.  Van  Horn,  18  111.  R.  257.     See  also  Dorian  v.  E.  Br.  &  Way.  Railw.  Co.,  46 

*143 


§  72.  MODE   OP   PROCEDURE.  275 

This  inquiry  leads  to  the  discussion  of  the  general  question,  of 
what  matters  may  be  proved,  by  the  opinion  of  witnesses  who 
are  not  possessed  of  any  peculiar  knowledge,  skill,  or  experience 
upon  the  subject. 

15.  And  it  must  be  admitted  the  cases  are  not  altogether  rec- 
oncilable upon  the  subject.  Experts  are  admitted  to  express 
their  opinions,  not  only  upon  their  own  observation,  but  upon 
testimony  given  in  court,  by  other  witnesses,  and  where  the  tes- 
timony is  conflicting,  upon  a  hypothetical  state  of  facts.23  The 
testimony  of  such  witnesses  is  intended  to  serve  a  double  pur- 
pose, that  of  instruction  to  the  jury  upon  the  general  question 
involved,  and  elucidation  of  the  particular  question  to  be  consid- 
ered by  them.23  The  resort  to  the  assistance  and  instruction  of 
persons  skilled  in  particular  departments  of  art  or  science  is 
constantly  adverted  to,  as  of  great  advantage  in  enabling  the 
triers  to  properly  comprehend  those  subjects  out  of  the  range  of 
general  knowledge,  or  the  particular  studies  of  judges,  or  jurors, 
in  some  of  the  best-considered  English  cases,  within  the  last  few 
years.24  But  the  testimony  of  scientific  witnesses  will  not  estab- 
lish facts  in  conflict  with  the  axiomatic  principles  of  science  and 
philosophy,  or  those  which  contradict  the  evidence  of  the  senses, 
or  of  consciousness.24 

Penn.  St.  520.  In  a  late  case  in  Pennsylvania  (East  Penn.  Railw.  Co.  v. 
Hiester,  40  Penn.  St.  53),  it  is  said  that  the  only  proper  test  of  the  value  of 
land  so  taken  is  the  opinion  of  witnesses  as  to  the  value  of  the  land  taken,  in 
view  of  its  location  and  productiveness,  its  market  value,  or  the  general  selling 
price  of  land  in  the  neighborhood.  And  this  seems  to  us  exceedingly  sensible 
and  free  from  refinement  or  conceit.  See  also  Same  v.  Hottenstine,  47  Penn. 
St.  28. 

23  1  Greenleaf  Ev.  §  440.  Thus  the  testimony  of  persons  employed  in  making 
insurance  of  buildings  against  fire,  may,  in  actions  against  railways  for  conse- 
quential damages  to  buildings,  by  the  near  approach  of  the  track,  express  their 
opinion  of  the  effect  thereby  produced  upon  the  rent,  or  the  rate  of  insurance 
of  such  buildings.  Webber  v.  Eastern  Railw.,  2  Met.  147.  See  also  Henry  v. 
Dubuque  &  Pacific  Railw.,  2  Clarke,  288.  And  in  the  case  of  Brown  v.  Prov- 
idence, Warren,  &  Bristol  Railw.,  5  Gray,  35,  it  was  held,  that  the  company 
could  not  show  that  liquors  were  sold,  or  to  be  sold,  upon  land,  as  a  part  of  the 
inducement  to  pay  so  high  a  rent,  or  that  it  was  "contemplated"  having  a  station 
near  the  point ;  such  testimony  being  too  indefinite  and  remote. 

24  Broadbent  v.  Imperial  Gas  Co.,  7  De  G.  M.  &  G.  436,  466,  opinion  of  Lord 
Chancellor  Cranworth. 


276  EMINENT   DOMAIN.  §   72. 

16.    But   there   is    certainly   a   very   considerable   number   of 
subjects,  in  regard  to  which  the  jury  are  supposed  to  be  well  in- 
structed, and  altogether  capable  of  forming  correct  opinions,  and 
in  regard  to  which  the  testimony  of  experts  is  not  competent,  or 
not  requisite,  but  which  it  is  more  or  less  difficult  for  the  wit- 
nesses to  describe  accurately,  so  as  to  place  them  fully  before  the 
minds  of  the  jury,  as  they  exist  in  the  minds  of  the  witnesses. 
Among  these  are  inquiries  in  regard  to  the  extent  of  one's  prop- 
erty, solvency,  health,  affection,  or  antipathy,  character,  sanity, 
and  some  others.      In  such  cases  the  witnesses'  knowledge  is 
chiefly  matter  of  opinion,  and  it  is  impossible  to  enumerate  each 
particular  fact.     Of  this  character  seem  to  us  to  be  questions  in 
regard  to  the  quality  and  value  of  property.     One  may  enume- 
rate some  of  the  leading  facts  upon  *  which  such  an  opinion  is 
based  ;  but  after  all,  the  testimony,  as  to  facts,  is  excessively  mea- 
gre, without  the  opinion  of  the  witness,  either  upon  the  very 
subject  of  inquiry,  or  some  one  as  near  it  as  can  be  supposed. 
Hence  in  those  courts  where  the  opinion  of  witnesses,  in  regard 
to  the  value  of  property,  real  or  personal,  is  not  admitted,  it 
leads  to  sundry  shifts  and  evasions,  in  the  course  of  the  exami- 
nation of  witnesses  upon  that  subject,  which,  while  it  is  not  a 
little  embarrassing  in  itself,  at  the  same  time  illustrates  the  in- 
consistency, not  to  say  absurdity,  of  the  rule.25 

85  Opinion  of  the  court  in  Concord  Railw.  v.  Greely,  3  Fost.  237.  "  A  wit- 
ness may  state  what  was  the  cost  of  property  of  a  particular  description  at  a 
given  place,  in  order  to  ascertain  the  value  of  property  of  a  similar  description. 
Whipple  v.  Walpole,  10  N.  H.  R.  130.  But  evidence  of  the  price  for  which  the 
corporation  offered  to  sell  a  tract  adjoining  Greely's,  and  how  much  they  re- 
fused to  take  for  it,  is  certainly  of  doubtful  competency.  We  have  held  at  this 
term,  in  the  case  of  Hersey  v.  The  Merrimack  County  Mutual  Fire  Insurance 
Company,  in  Merrimack  county,  that  what  the  owner  of  a  piece  of  real  estate 
said  he  would  sell  the  same  for,  was  competent  evidence  against  him,  as  tending 
to  show  its  value.  But  that  was  a  statement  in  regard  to  the  value  of  the  land 
itself,  while  the  evidence  admitted  here  was  going  one  step  further ;  it  was  a 
statement  in  regard  to  other  lands  ;  and  it  is  quite  questionable  whether  it  could 
have  any  legitimate  tendency  to  prove  the  value  of  Greely's  land. 

"  On  questions  of  science,  skill,  or  trade,  or  others  of  a  like  kind,  experts  may 

not  only  testify  to  facts,  but  are  permitted  to  state  their  opinions.     1  Greenl.  Ev. 

§  440.     But  upon  subjects  of  general  knowledge,  which  are  understood  by  men 

in  general,  and  which  a  jury  are  presumed  to  be  familiar  with,  witnesses  must 

*  344 


§   72.  MODE   OF   PROCEDURE.  277 

17.  In  regard  to  costs,  in  such  proceedings,  the  more  general 
rule  is  not  to  allow  them,  unless  specifically  given  by  statute.26 

testify  as  to  facts  alone,  and  the  jury  must  form  their  opinions.     In  such  cases, 
the  testimony  of  witnesses,  as  experts  merely,  is  not  admissible." 

If  an  inquiry  arose  in  regard  to  the  value  of  a  cargo  of  Hour,  it  would  cer- 
tainly sound  strange  to  hear  witnesses  testify  what  precisely  similar  flour  is 
worth,  and  at  the  same  time  be  gravely  told,  that  they  were  studiously  to  avoid 
expressing  any  opinion  of  the  value  of  this  very  flour,  which  they  had  seen  and 
examined,  and  in  regard  to  which  the  whole  testimony  was  received.  Yet  such 
is,  from  necessity,  the  course  resorted  to,  under  the  rule.  The  more  general 
course  is,  we  think,  to  receive  the  opinion  of  witnesses,  acquainted  with  the 
property  and  the  state  of  the  market,  as  to  the  value  of  the  particular  property 
in  question.  White  v.  Concord  Railw.,  10  Foster,  188.  But  in  New  Hamp- 
shire, in  a  late  case,  it  is  held  that  the  opinion  of  witnesses,  in  regard  to  apparent 
health,  is  competent  to  be  given ;  and  this  seems  to  be  yielding  the  main  point 
of  exclusion  before  insisted  upon.  Spear  v.  Richardson,  34  N.  H.  R.  428.  In 
this  same  case  the  opinion  of  witnesses,  whether  a  horse  was  sound,  or  had  a 
particular  disease,  the  heaves,  was  excluded  because  the  witness  was  not  shown 
to  be  an  expert.  We  are  not  surprised  that  the  judge  regarded  the  distinction 
as  "  somewhat  nice."  And  in  Currier  v.  Boston  &  M.  Railw.,  34  N.  H.  R.  498, 
it  was  held  that  a  witness  could  give  an  opinion  in  regard  to  the  occurrence  of 
hardpan  in  an  excavation  ;  and  in  Hackett  v.  Boston,  Con.  &  Mont.  R.,  35  N. 
H.  R.  390,  it  was  held  that  a  witness  might  express  an  opinion  in  regard  to 
distances,  dimensions,  and  qualities.  See  also  Roch.  &  Sy.  Railw.  v.  Budlong,  6 
How.  Pr.  467. 

And  in  Illinois  &  Wisconsin  Railw.  v.  Yon  Horn,  18  Illinois  R.  257,  it  is 
held  that  it  is  proper  to  have  the  opinion  of  witnesses  in  regard  to  the  value  of 
city  lots,  "  as  they  have  no  stated  value."  Skinner,  J.  said  :  "To  describe  to  a 
jury  a  piece  of  ground,  however  minutely,  with  its  supposed  adaptations  to  use, 
advantages  and  disadvantages,  and  demand  of  them,  upon  this  information  alone, 
a  verdict  as  to  its  value,  would  be  merely  farcical ;  and  this,  indeed,  is  all  that 
can  be  done  to  enable  them  to  arrive  at  a  conclusion  as  to  the  value,  unless  the 
witnesses  are  allowed  to  state  their  judgment  or  opinion,  together  with  the  facts 
upon  which  such  opinion  is  founded.  Butler  v.  Mehrling,  15  111.  R.  488 ;  Kel- 
logg v.  Krauser,  14  Serg.  &  Rawle,  137."  In  Cleve.  &  Pittsb.  Railw.  v.  Ball, 
5  Ohio  St.  568,  it  is  said,  witnesses  may  be  allowed  to  express  an  opinion  as  to 
the  value  of  the  land  taken,  but  not  as  to  the  extent  of  damages  which  the  land- 
owner will  sustain  by  the  appropriation  of  the  land  to  public  use,  that  being  the 
very  question  to  be  settled  by  the  triers.  This  seems  to  us  placing  the  matter 
upon  its  proper  basis.  One  must  have  had  experience  in  regard  to  the  particu- 
lar point,  as  laying  a  railway  over  a  wharf,  in  order  to  give  an  opinion  of  the 
extent  of  the  injury  caused  thereby,  and  it  is  not  sufficient  that  he  may  have 
had  experience  and  skill  in  other  matters  pertaining  to  the  building  and  opera- 

26  Herbein  v.  The  Railroad,  9  Watts,  272. 


278  EMINENT   DOMAIN.  §    72. 

But  where  the  statute  provides  for  an  assessment  of  land  dam- 
ages, by  a  jury,  at  the  suit  of  the  party  aggrieved,  the  costs  to  be 
paid  *  by  the  company,  this  was  held  not  to  include  the  fees  of 
witnesses  examined  by  the  jury,  on  the  part  of  the  claimant.27 

18.  But  the  terms  "  costs  and  expenses  incurred,"  were  held 
to  include  the  costs  of  witnesses,  and  of  summoning  the 
viewers.28 

19.  If  the  act  makes  no  provision  for  compensation  to  the 
commissioners,  they  have  no  power  to  order  the  company  to  pay 
the  cost  of  their  expenses  and  services.29 

20.  But  where  the  party  whose  costs  are  rightfully  denied  in 
the  Court  of  Common  Pleas,  appeals  upon  that  question,  and  the 
judgment  is  affirmed,  he  must  pay  costs  to  the  other  party,  con- 
sequent upon  the  appeal.30 

21.  It  is  no  objection  to  the  competency  of  a  juror,  in  this 
class  of  cases,  that  he  had  been  an  appraiser  of  damages  upon 
another  railway,  in  the  same  county,  or  that  he  is  a  stockholder 
in  another  railway  which  had  long  before  acquired  the  lands 
necessary  for  its  use.81 

tion  of  railways.  Boston  &  "Worcester  Railw.  v.  Old  Colony  &  F.  R.  Railw.,  3 
Allen,  142.  The  court  in  this  case  declined  to  set  aside  the  verdict  for  land 
damages,  because  testimony  of  the  sale  of  upland  at  a  considerable  distance 
from  the  wharf,  and  of  the  price  paid  four  months  before  the  time  of  making 
the  location,  was  received,  and  also  of  the  number  of  trains  passing  over  the 
land  taken,  and  of  the  number  of  vessels  and  amount  of  lumber,  wood,  and  coal, 
&c,  coming  to  the  wharf. 

27  Railroad  v.  Johnson,  2  Wharton,  275. 

88  Penn.  Railroad  v.  Keiffer,  22  Penn.  St.  356 ;  Chicago  &  Mont.  Railw.  v. 
Bull,  20  Illinois  R.  218. 

89  At.  &  St.  L.  Railroad  v.  The  Commissioners,  28  Maine  R.  112. 

30  Harvard  Branch  Railw.  v.  Rand,  8  Cush.  218 ;  Commonwealth  v.  Bos- 
ton &  Maine  Railw.,  3  Cush,  56.  But  see  §  71,  note  10,  ante,  in  regard  to 
the  course  of  proceeding,  in  estimating  land  damages.  Where  the  statute  gives 
an  appeal,  in  estimating  land  damages,  to  a  court  of  common-law  jurisdiction, 
and  does  not  prescribe  the  mode  of  trying  the  appeal,  it  will  be  tried  by  com- 
missioners, that  being  the  usual  course  of  trying  cases  of  that  class,  in  common- 
law  courts.  And  a  statute  requiring  parties  to  be  allowed  a  trial  by  jury,  in  all 
cases  proper  for  a  jury,  will  not  alter  the  mode  of  trying  such  appeals.  Gold  v. 
Vt.  Central  Railw.,  19  Vt.  R.  478. 

31  People  v.  First  Judge  of  Columbia,  2  Hill  (N.  Y.),  398.  The  tribunal 
for  assessing  land  damages  should  be  free  from  interest  or  bias  in  order  to  meet 

*145 


§  72.  MODE   OP  PROCEDURE.  279 

22.  Courts  do  not  generally  possess  the  power  to  revise  the 
assessment  of  land  damages,  by  a  jury  or  other  tribunal  ap- 
pointed by  them  for  that  purpose,  upon  its  merits,  and  set  it  aside, 
upon  the  mere  ground  of  inadequacy,  or  excess  of  damages.32 

23.  Where  commissioners  assessed  land  damages  at  a  sum 
named,  and  stated  further,  that  the  plaintiff  was  to  receive  an 
additional  sum  in  a  certain  contingency,  and  the  report  became 
matter  of  record,  it  was  held  that  debt  will  not  lie,  for  the  addi- 
tional sum,  upon  averring  the  happening  of  the  contingency.33 

*  24.  Where  the  statute  gave  the  court  a  discretion,  to  accept 
and  confirm  the  inquest  of  land  damages,  or  order  a  new  inquest, 
"  if  justice  shall  seem  to  require  it,"  it  was  held  they  might  set 
aside  the  report  for  mere  excess  of  damages,  and  that  the  Su- 
preme Court  might  do  the  same,  when  the  proceedings  are 
brought  up  by  certiorari.^ 

the  constitutional  requirement  for  just  compensation.  Powers  v.  Bears,  12  Wis. 
R.  213.     But  see  Strang  v.  Beloit  &  M.  Railw.  Co.,  16  Wis.  R.  635. 

32  Willing  v.  Baltimore  Railw.,  5  Whart.  460.  As  to  what  is  good  cause  for 
setting  aside  the  report  of  commissioners,  see  Bennet  v.  Railw.,  2  Green,  145; 
Van  Wickle  v.  Same,  Id.  162 ;  R.  &  S.  Railw.  v.  Budlong,  6  How.  Pr.  467. 

In  Missouri,  when  the  report  of  commissioners  is  set  aside,  the  court  must  ap- 
point a  new  board.  Hannibal  &  St.  Joseph  Railw.  Co.  v.  Rowland,  29  Mo.  R.  337. 
But  this  rule  will  not  apply  where  the  report  is  recommitted  to  the  same  board, 
with  instructions  to  pursue  a  different  rule  in  estimating  damages.     lb. 

33  W.  &  P.  Railroad  Co.  v.  Washington,  1  Robinson  (Va.) ,  67.  See  also  Dim- 
ick  v.  Brooks,  21  Vt.  R.  569. 

34  Pennsylvania  Railw.  v.  Heister,  8  Penn.  St.,  445 ;  Same  v.  McClure,  R>. ; 
Same  v.  Riley,  lb. ;  Same  cases,  2  Am.  Railw.  C.  337. 


OTHER   MATTERS   OF   PRACTICE,    IN   REGARD   TO   ASSESSING   LAND   DAMAGES. 

All  the  commissioners  must  be  present  and  act,  in  all  matters  of  a  judicial 
character.  Crocker?;.  Crane,  21  Wend.  211.  In  regard  to  the  mode  of  select- 
ing and  impanelling  jui'ies,  for  assessing  land  damages  against  railways,  the  fol- 
lowing cases  may  be  referred  to: — Penn.  Railw.  v.  Heister,  8  Penn.  St.,  445, 
which  decides,  that  where  the  statute  requires  the  sheriff  to  summon  the  jury, 
it  is  irregular  for  him  to  select  them  from  a  list  prepared  by  his  deputy.  And 
Vail  v.  Morris  &  Essex  Railw.,  1  Zab.  189,  where  it  is  held,  that  commissioners 
appointed  to  value  the  land  of  E.  V.  upon  one  route,  adopted  by  the  company, 
cannot  appraise  the  land  of  the  same  person,  when  the  company  adopt  a  differ- 
ent route,  across  the  land. 

In  regard  to  the  right  of  appeal,  which  is  given  in  terms  to  the  party  aggrieved, 

*146 


280  EMINENT   DOMAIN.  §   72. 

25.  It  does  not  seem  important,  where  the  statute  in  terms 
allows  either  party  to  take  compulsory  proceeding  to  assess  land 
damages  upon  the  parties  failing  to  agree,  that  there  shall  have 
been  any  previous  attempt  to  agree,  in  order  to  give  jurisdiction 
to  the  courts  to  assess  the  amount  of  such  compensation.35 

it  has  been  held  to  extend  to  the  railway  company,  as  well  as  the  land-owner. 
Kimball  v.  Kennebec  &  Portland  Railw.,  35  Maine  R.  255. 

No  appeal  lies  from  the  order  of  the  Supreme  Court,  confirming  the  report  of 
commissioners  on  the  appraisal  of  land  damages,  for  land  taken  under  the  gen- 
eral railway  act.  The  act  provides  for  no  such  appeal  to  the  Court  of  Appeals, 
and  the  remedy,  in  the  act,  is  intended  to  be  exclusive.  And  besides,  the  Su- 
preme Court  exercise  a  discretion,  to  some  extent,  in  confirming  such  reports, 
and  appeals  will  not,  upon  general  principles,  lie  to  revise  such  adjudications. 
New  York  Central  Railw.  v.  Marvin,  1  Kernan,  276  ;  Troy  &  Boston  Railw.  v. 
Northern  Turnpike  Co.  16  Barb.  100. 

Where  the  special  act  of  a  railway  company  required  them  to  give  the  land- 
owner ten  days1  notice  of  the  time  when  a  jury  would  be  drawn  to  assess  dam- 
ages, it  was  held  that  a  strict  compliance  with  this  requirement  was  indispensa- 
ble to  give  jurisdiction,  and  that  the  objection  was  not  waived  by  appearance 
before  the  officer  at  the  time  the  jury  were  drawn,  and  objecting  to  the  regu- 
larity of  the  proceedings,  without  stating  the  grounds,  or  by  appearing  before 
the  jury,  when  they  met  to  appraise  the  damages,  and  objecting  to  one  of  them, 
who  was  set  aside.     Cruger  v.  The  Hudson  River  Railw.,  2  Kernan,  190. 

Mere  informalities  in  the  summons,  which  do  not  mislead  the  company,  will 
not  avoid  the  proceeding.    Eastham  v.  Blackburn  Railw.,  25  Eng.  L.  &  Eq.  498. 

It  is  not  important  that  the  award  should  specify  the  finding  upon  the  sepa- 
rate items  of  claim.     In  re  Bradshaw,  12  Q.  B.  562. 

Where  the  special  act  of  a  railway  company  prescribes  a  different  mode  of 
procedure,  in  condemning  land,  from  that  required  by  a  general  law  of  the 
state,  subsequently  passed,  the  company  may  pursue  the  course  prescribed  by 
their  special  act.  Cla'rkson  v.  Hudson  River  Railw.,  2  Kernan,  304.  But  it 
seems  to  be  here  considered,  that  the  company  may  adopt  the  course  prescribed 
by  the  general  act,  if  they  so  elect.  And  upon  general  principles  it  would  seem 
that  they  should  do  so,  unless  there  is  something  in  the  general  act  by  which  the 
existing  railways  are  at  liberty  to  proceed  under  their  charters.  This  is  the 
ground  of  the  decision  in  the  last  case.    North  Mo.  Railw.  v.  Gott,  25  Mo.  R.  540. 

Where  the  company's  special  act  vests  specific  and  special  powers  in  them, 
for  the  benefit  of  the  public  (as  to  build  stations  of  given  dimensions  larger  than 
the  general  act  provides),  it  is  not  controlled  by  subsequent  general  acts. 
London  &  Blackwall  Railw.  v.  Board  of  Works,  28  Law  Times,  140,  Decem- 
ber, 1856. 

In  regard  to  the  mode  of  proceeding  in  such  cases,  see  Coster  v.  N.  J.  Railw. 
&  Tr.  Co.,  4  Zab.,  730 ;  Green  v.  Morris  &  Essex  Railw.,  Id.  486  ;  Pittsfield  & 
North  Adams  Railw.  v.  Foster,  1  Cush.  480. 

35  Bigelow  v.  Miss.  Central  &  Tenn.  Railw.  Co.  2  Head,  624.  ^ 


§  73.  THE   TIME   COMPENSATION   TO    BE   MADE.  281 

*SECTION    XI. 
The   Time   Compensation  to  be  made. 

1.  Opinions  conflicting.  I  6.  Adequate  legal  remedy  sufficient. 

2.  Chancellor  Kent's  definition.  7.    Where  required,  payment  is  requisite  to 

3.  That  of  the  Code  Napoleon.  vest  the  title. 

4.  Most  state  constitutions  require  it   to  be 

concurrent  with  the  taking. 

5.  English  cases  do  not  require  this. 


8.  Some  states  hold  that  no  compensation  is 
requisite. 


§  73.  1.  In  general,  railway  acts  require  compensation  to  be 
made,  before  the  company  take  permanent  possession  of  the 
land.1  And  it  has  even  been  made  a  question,  in  this  country, 
whether  the  legislature  could  give  a  railway  company  authority 
to  take  permanent  possession  of  lands,  required  for  their  use, 
previous  to  making  or  tendering  or  depositing,  in  conformity 
with  their  charter  or  the  general  law,  compensation  for  the  same.2 

2.  The  profound  and  sensible  author  of  the  Commentaries  on 
American  Law3  thus  states  the  rule  upon  this  subject:  "The 
*  settled  and  fundamental  doctrine  is,  that  government  has  no 
right  to  take  private  property,  for  public  purposes,  without  giv- 
ing just  compensation ;  and  it  seems  to  be  necessarily  implied, 
that  the  indemnity  should,  in  cases  which  will  admit  of  it,  be 
previously  and  equitably  ascertained,  and  be  ready  for  reception, 
concurrently,  in  point  of  time,  with  the  actual  exercise  of  the 
right  of  eminent  domain." 

3.  The  language  of  the  Code  Napoleon4  is  specific  upon  this 
point :  "  No  one  can  be  compelled  to  give  up  his  property  ex- 

1  Lands  Clauses  Consolidation  Act,  8  Vict.  c.  18,  §  84,  et  seq. ;  Ramsden  v. 
Manchester  &  S.  J.  &  A.  Railw.,  5  Railw.  C.  552.  In  such  cases  courts  of 
equity  will  enjoin  the  company  from  taking  possession  until  compensation  is 
made,  unless  the  owner  consent.  Ross  v.  E.  T.  &  S.  Railw.,  1  Green's  Ch. 
422. 

2  Thompson  v.  Grand  Gulf  Railw.  Co.,  4  Howard,  Miss.  R.  240.  The  constitu- 
tion of  this  state,  however,  requires  a  previous  compensation  to  be  made.  See 
also  Cushman  v.  Smith,  34  Maine  R.  247. 

3  2  Kent,  Comm.  340  (7th  ed.),  393,  and  note.  The  Milwaukee  &  M.  Railw. 
Co.  v.  Eble,  4  Chandler  (Wis.),  72 ;  Cushman  v.  Smith,  34  Maine  R.  247. 

4  Code  Napoleon,  Book  II.  Title  II.  545. 

*  147,  148 


282  EMINENT   DOMAIN.  §   73. 

cept  for  the  public  good,  and  for  a  just  and  previous  indemnity." 
A  similar  provision  existed  in  the  Roman  civil  law. 

4.  It  is  embodied,  in  different  forms  of  language,  into  the 
written  constitutions  of  most  of  the  American  states,  but  not 
generally,  in  terms  requiring  the  indemnity  concurrently  with 
the  appropriation.  But  practically  that  view  has  generally  pre- 
vailed in  the  courts.5 

5  Lyon  v.  Jerome,  26  Wend.  485,  497;  Opinion  of  Sutherland,  J.,  Case  v. 
Thompson,  6  Wend.  634.  In  this  case  it  was  held,  that  it  was  not  indispensa- 
ble to  the  opening  of  a  road  over  the  land  of  an  individual,  that  the  price  should 
be  paid,  or  assessed  even,  before  the  opening  of  the  road.  And  in  Bonaparte  v. 
C.  &  A.  Railw.  Co.,  1  Bald.  C.  C.  205,  216,  it  was  held,  that  a  law  taking  private 
property  without  providing  for  compensation  was  not  void,  for  it  was  said,  that 
may  be  done  by  a  subsequent  law.  But  the  appropriation  was  enjoined,  in  that 
ease,  till  compensation  should  be  made.  See  also  Gardner  v.  The  Village  of 
Newburgh,  2  Johns.  Ch.  162  ;  Henderson  v.  The  Mayor,  &c.  of  New  Orleans,  5 
Miller's  Louis.  416;  Rogers  v.  Bradshaw,  20  Johns.  735;  Duncan,  J.,  in  Ea- 
kin  v.  Raub,  12  Serg.  &  R.  330,  366,  372;  O'Hara  v.  Lexington  Railw.,  1 
Dana,  232;  Hamilton  v.  Annapolis  &  Elkridge  Railw.  C.  1  Md.  Ch.  107  ;  Mar- 
tin, ex  parte,  8  Eng.  (Ark.)  198.  In  Bloodgood  v.  The  Mohawk  &  Hudson 
Railw.  Co.,  14  Wend.  51,  it  is  held  that  this  constitutional  requirement  merely 
contemplates  a  legal  provision  for  compensation,  and  not  that  such  property 
shall  be  actually  paid  for  before  taken.  In  Boynton  v.  The  Peterboro1  and 
Shirley  Railw.  Co.,  4  Cush.  467;  1  Am.  Railw.  C.  595,  Shaw,  Ch.  J.  says, 
"  The  right  to  damages  for  land  taken  for  public  use  accrues  and  takes  effect 
at  the  time  of  taking,  though  it  may  be  ascertained  and  declared  afterwards. 
That  time  in  the  case  of  railroads,  prima  facie,  and  in  the  absence  of  other  proof, 
is  the  time  of  the  filing  of  the  location."  Charlestown  Branch  Railw.  v.  Middle- 
sex, 7  Metcalf,  78 ;  s.  c.  1  Am.  Railw.  C.  383  ;  Davidson  v.  Boston  &  Maine 
Railw.,  3  Cush.  91. 

In  Massachusetts  the  remedy  is  limited  to  three  years  by  statute,  and  the  time 
begins  from  the  filing  of  the  location.  Charlestown  Branch  Railw.  v.  County 
Commissioners  of  Middlesex,  7  Met.  78 ;  s.  c.  1  Am.  Railw.  C.  383.  So  where  a 
corporation,  after  locating  a  railway  over  a  wharf  more  than  sixty  feet,  and 
filing  the  location  with  the  county  commissioners,  agreed  with  the  owners  of  the 
wharf  to  extend  the  road  sixty  feet  on  and  over  the  same  before  a  certain  day, 
and  the  owners,  in  consideration,  agreed  to  demand  no  damages  for  the  extension, 
and  the  road  was  constructed  according  to  the  location  filed  before  the  agreement, 
Held,  that  this  was  not  an  agreement  not  to  extend  the  road  more  than  sixty  feet, 
and  that  the  owners  of  the  wharf  were  not  thereby  entitled  to  apply,  after  three 
years  from  the  filing  of  the  location,  for  an  estimate  of  the  damages  caused  by  an 
extension  of  the  road  more  than  sixty  feet  over  the  wharf.  lb.  By  the  New  York 
statute  of  1851,  railway  companies  have  no  right  to  enter  upon,  occupy,  or  cross 
a  turnpike  or  plank  road  without  consent  of  the  owners,  except  on  condition  of 


§    73.  THE   TIME   COMPENSATION   TO   BE   MADE.  283 

*  5.  It  was  held  in  one  case,6  where  the  act  of  parliament  gave 
the  right  to  take  lands  for  the  purpose  of  building  a  turnpike- 
first  making  compensation  for  damages  to  such  turnpike  or  plank  road  com- 
pany.    Plank  Road  Co.  v.  Buffalo,  &c.  Railw.  Co.,  20  Barb.  644. 

Shaw,  Ch.  J.,  in  Boston  &  Providence  Railw.  Corporation  v.  Midland  Railw. 
Co.,  1  Gray,  340,  360,  says:  "The  effect  of  the  location  is  to  bind  the  land 
described  to  that  servitude,  and  to  conclude  the  land-owner  and  all  parties  hav- 
ing derivative  interests  in  it  from  denying  the  title  of  the  company  to  their 
easement  in  it.  We  think,  therefore,  that  the  filing  of  the  location  is  the  taking 
of  the  land.  It  is  upon  that  the  owner  is  forthwith  entitled  to  compensation,  it 
is  that  act  which  gives  the  easement  to  the  corporation  and  the  right  to  have 
damages  to  the  owner  of  the  land."  See,  also,  Drake  v.  Hudson  River  Railw., 
7  Barb.  508,  552. 

In  those  states,  where  the  constitutions  contain  express  provisions  requiring  a 
previous  compensation  to  the  right  to  appropriate  the  land,  as  in  Pennsylvania, 
Wisconsin,  Kentucky,  and  Mississippi,  the  decisions  upon  this  point  would  not 
be  much  guide,  in  regard  to  the  general  rule,  in  the  absence  of  any  express  pro- 
vision of  the  kind.     But  see  Harrisburg  v.  Crangle,  3  Watts  &  Serg.  460. 

And  in  some  of  the  states,  even  where  a  concurrent  right  to  compensation, 
with  the  appropriation  of  the  land,  is  recognized,  it  seems  to  be  considered  by 
some  that  a  statute,  authorizing  the  appropriation  of  land  for  public  uses,  and 
which  makes  no  provision  for  compensation,  is  not  on  that  account  unconstitu- 
tional.    Opinion  of  the  Chancellor  in  Rogers  v.  Bradshaw,  20  Johns.  735. 

But  the  prevailing  opinion,  even  in  New  York,  seems  to  be,  that  the  statute 
should  provide  some  available  remedy  for  adequate  compensation,  and  that  un- 
less that  is  done,  the  act,  if  not  positively  unconstitutional,  is  so  defective,  that 
no  proceedings  should  be  suffered  under  it,  until  compensation  is  secured,  and 
that  a  court  of  equity  should  interfere.  Gardner  v.  Newburgh,  2  Johns.  Ch. 
162 ;  Rexford  v.  Knight,  1  Kernan,  308 ;  Willyard  v.  Hamilton,  7  Ham.  449 ; 
Rubottom  v.  McClure,  4  Blackf.  505 ;  McCormick  v.  Lafayette,  Smith,  (Indi- 
ana), 83;  Mercer  v.  McWilliams,  Wright,  132. 

Some  cases  have  made  a  distinction  (in  regard  to  the  necessity  of  a  previous- 
ly ascertained  compensation  being  made  and  so  situated  as  to  be  capable  of  being 
made  available  to  the  owner  of  land,  concurrently  with  its  appropriation  to  pub- 
lic use)  between  ordinary  cases  and  that  class  of  cases  where  the  property  is 
put  to  the  use  of  the  state  directly,  and  that  in  such  cases  it  is  not  indispensable. 
Young  v.  Harrison,  6  Geo.  130. 

And  the  grant  of  the  right  to  bridge  a  navigable  river,  or  arm  of  the  sea,  or 
to  obstruct  the  flow  and  reflow  of  the  tide  upon  the  flats  of  private  persons,  al- 

6  Lister  v.  Lobley,  7  Ad.  &  Ellis,  124,  Lord  Denman  says  :  "  The  amount  of 
compensation  cannot  generally  be  ascertained  till  the  work  is  done.  The  effect 
of  the  words  in  question  is  that  they  shall  not  do  it  without  being  liable  to  make 
compensation."  It  seems  to  have  been  supposed  here,  that  if  the  company  did 
not  make  compensation  they  might  be  compelled  to  do  so  by  mandamus. 

*  149 


284  EMINENT   DOMAIN.  §   73. 

road,  *  making,  or  tendering  satisfaction,  that  this  need  not  be 

done  before,  or  at  the  time  of  entering  upon  or  taking  the  lands. 

6.    But  this  subject  was  largely  discussed,  in  an  early  case  in 

New  York,7  and  finally  determined,  by  the  court  of  errors  rcvers- 

though  it  may  abridge  their  beneficial  use,  is  not  such  an  invasion  of  private 
property  as  to  entitle  the  party  to  compensation.  It  is  but  the  regulation  of 
public  rights,  and  if  private  persons  thereby  suffer  damage,  it  is  damnum  absque 
injuria.  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91.  See,  also,  upon  the 
subject  generally,  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346;  Phila- 
delphia &  Reading  Railw.  v.  Yeiser,  8  Penn.  St.  366 ;  2  Am.  Raihv.  C.  325 ; 
Commonwealth  v.  Fisher,  1  Penn.  R.  462,  and  ante,  §  63. 

But  it  is  very  generally  held,  that  in  the  absence  of  all  express  provision  by 
statute  in  regard  to  the  time  when  compensation  shall  be  made,  the  party  is  at 
all  events  entitled  to  have  it  ascertained  and  ready  for  his  acceptance,  concur- 
rently with  the  actual  appropriation  of  the  estate  to  public  use,  and  that  he  is  not 
obliged  to  wait  till  the  work  is  completed.  People  v.  Hayden,  6  Hill  (N.  Y.), 
359;  Baker  v.  Johnson,  2  Hill,  342. 

But  no  right  to  compensation  vests  in  the  land-owner  till  the  acceptance  and 
confirmation  of  the  appraisal  by  the  proper  tribunal,  under  any  statutory  pro- 
visions, in  most  of  the  American  states,  and  until  that,  the  company  may  change 
the  location  of  their  road,  and  abandon  proceedings  pending  against  land-owner, 
on  the  first  surveyed  route,  by  paying  costs  already  assessed.  Hudson  River 
Railw.  v.  Outwater,  3  Sand.  Sup.  Ct.  689. 

And  where  the  statute  of  the  state  provides  that  no  valuation  of  property 
taken  for  railway  and  canal  purposes  need  be  made  before  taking  possession  of 
the  same,  in  those  cases  where  the  property  is  not  obscured,  so  that  its  value 
cannot  be  judged  of,  it  was  held  there  should  be  no  unreasonable  delay  in  having 
the  valuation  made.     Compton  v.  Susquehannah  Railw.,  3  Bland.  Ch.  386. 

7  Bloodgood  v.  M.  &  H.  Railw.  Co.,  14  Wend.  51 ;  s.  c.  18  Id.  9,  59.  See, 
also,  upon  this  subject,  Fletcher  v.  Auburn  &  Syracuse  Railw.,  25  Wend.  462; 
Smith  v.  Helmer,  7  Barb.  416 ;  Pittsburgh  v.  Scott,  1  Penn.  St.  309 ;  People  v. 
Michigan  Southern  Railw.,  3  Gibbs,  496.  In  this  case  it  is  said  the  party  who 
makes  no  application  for  compensation  for  many  years  should  be  regarded  as 
having  waived  all  claim.  Id.  p.  506.  See,  also,  Smith  v.  McAdam,  3  Gibbs,  506. 
And  where  the  statute  provided  for  depositing  the  value  of  the  land  taken  before 
entry  upon  it,  it  was  held  this  was  a  provision  for  the  security  of  the  land-owner, 
and  might  be  waived  by  him  ;  and  if  so,  and  entry  was  made  by  the  company 
without  making  the  deposit,  he  might  recover  the  assessment  in  an  action  of 
debt.  Smart  v.  Railway,  20  N.  H.  R.  233.  But  in  one  case  it  was  held  indis- 
pensable to  the  validity  of  the  power,  that  the  party,  whose  land  was  taken, 
should  have  something  more  than  a  right  of  action  for  the  value  of  his  land. 
Shepardson  v.  M.  &  B.  Railw.,  6  Wisconsin  R.  605.  See  Powers  v.  Bears,  12 
Id.  213 ;  Ford  v.  Ch.  &  X.  W.  Railw.  Co.,  14  Id.  609. 

And  by  the  construction  of  the  statute  of  Maine,  a  railway  corporation,  as  soon 
as  their  track  is  located,  may  take  immediate  possession,  and  the  land-owner, 
*150 


§   73.  THE   TIME    COMPENSATION   TO   BE   MADE.  285 

ing  the  judgment  of  the  court  below,  that  if  provision  was  made 
for  compensation  in  the  act,  giving  power  to  take  the  lands,  it 
was  not  indispensable  that  the  amount  should  be  actually  ascer- 
tained and  paid  before  the  appropriation  of  the  property. 

7.  In  Mississippi  it  is  required,  by  the  constitution  of  the  state, 
that  the  compensation  be  paid  before  the  right  to  iise  the  land  is 
*  vested.8     So  also  in  Georgia  the  title  does  not  vest  in  the  corn- 


failing  to  agree  with  the  company,  as  to  the  amount  of  damages,  may  apply  to 
the  courts  to  have  the  same  assessed,  and  thereupon  the  company  are  required 
to  pay  or  give  security  for  the  same,  and  their  right  of  possession  is  suspended 
until  the  requirement  is  complied  with ;  but  no  action  of  trespass  lies  in  such 
cases.  Davis  v.  Russell,  47  Me.  R.  443.  Where  by  statute  a  bond  is  required 
to  be  filed  by  the  company  to  secure  damages  to  the  land-owner,  upon  failure  of 
the  parties  to  agree  upon  the  amount,  such  bond  extends  to  all  the  lawful  dam- 
age caused  to  the  owner  by  the  construction  of  the  company's  works ;  and  the 
fact  of  it  being  approved  and  ordered  to  be  filed  is  presumptive  proof  that  the 
parties  had  failed  to  agree.  Wadhams  v.  Lackawanna  &  Blooms.  Railw.  Co., 
Penn.  St.  303. 

But  in  most  of  the  states  the  assessment  of  the  damages  due  to  the  land-owner, 
and  the  payment,  tender,  or  deposit  of  the  same,  is  held  a  condition  precedent 
to  the  right  of  entry  upon  the  land,  and  the  company  entering  before  this  will, 
prima  facie,  be  regarded  as  trespassers.  Memphis  &  Charleston  Railw.  Co.  v. 
Payne,  37  Miss.  R.  700 ;  Henry  v.  Dubuque  &  Pacific  Railw.,  10  Iowa  R.  540 ; 
Evans  v.  Haefner,  29  Mo.  R.  141 ;  Burns  v.  Dodge,  9  Wise.  R.  458. 

In  McAulay  v.  Western  Vermont  Railw.  Co.,  33  Vt.  R.  311,  it  was  decided 
that  the  payment  of  land  damages  was  a  condition  precedent  to  the  acquiring  of 
title  by  a  railroad  company  of  lands  taken  for  their  road.  But  that  where  the 
land- owner  acquiesces  in  the  occupation  of  his  land  for  the  construction  of  a 
railway  without  prepayment  of  land  damages,  upon  a  contract  or  understanding 
for  future  payment  by  the  company,  and  the  road  is  constructed  and  put  in  op- 
eration, he  cannot  afterwards,  on  failure  to  obtain  payment,  maintain  trespass 
or  ejectment  for  the  land.  And  whether,  under  such  circumstances,  he  would 
still  retain  an  equitable  lien  on  the  land,  seems  doubtful.  The  mere  prosecution 
of  a  controversy  by  the  land-owner  with  the  company,  before  commissioners  or 
on  appeal,  as  to  the  amount  of  the  damages,  is  not  such  a  prohibition  of  the  tak- 
ing of  the  land  by  the  company  without  prepayment  of  land  damages  as  is  neces- 
sary to  enable  the  land-owner  to  maintain  trespass  or  ejectment  for  the  land  after 
the  road  is  put  in  operation.  Nor  will  notice  to  the  laborers  on  the  railway  em- 
ployed by  the  contractor  be  considered  as  sufficient  to  entitle  the  land-owner 
to  maintain  trespass  or  ejectment  against  the  company,  the  company  not  being 
affected  by  such  notice. 

8  Stewart  v.  Raymond  Railw.  Co.,  7  Smedes  &  M.  568.  See  also  Thomp- 
son v.  Grand  Gulf  Railw.,  3  Howard  (Miss.),  240. 

*  151 


286  EMINENT   DOMAIN.  §   73. 

pany  until  the  ascertained  compensation  is  paid  or  tendered.9  A 
similar  decision  was  made  by  the  Supreme  Court  of  the  United 
States,10  where  the  charter  of  the  company  provided  that  the  pay- 
ment, or  tender,  of  the  valuation,  should  vest  the  estate  in  the 
company,  as  fully  as  if  it  had  been  conveyed.  And  a  similar 
decision  was  also  made  by  the  Supreme  Court  of  Vermont.11 

8.  In  one  case  in  North  Carolina,12  it  was  held  that  compensa- 
tion need  not  be  made  prior  to  appropriating  land  for  public  use. 
The  constitution  of  the  state  is  said  to  contain  no  prohibition 
against  taking  private  property  for  public  use,  without  compen- 
sation. And  the  same  is  true  of  the  constitution  of  South  Caro- 
lina. And  the  latter  state  held 13  that  private  property  might  be 
taken  without  compensation.  But  this  decision  is  certainly  at 
variance  with  the  generally  received  notions  upon  that  subject, 
since  the  period  of  the  Roman  Empire. 

9  Doe  v.  The  Georgia  Railw.  Banking  Co.,  1  Kelly,  524. 

10  Baltimore  &  Susquehanna  Railw.  Co.  v.  Nesbit,  10  How.  395. 

11  Stacey  v.  Vermont  Central  Railw.  Co.  27  Vt.  R.  39.  The  opinion  of  Isliam, 
J.,  in  this  case,  will  show  the  correlative  rights  of  the  company  and  land-owner, 
and  by  what  act  the  right  of  each  becomes  perfected.  Where  the  statute  re- 
quires the  company  to  contract  in  writing,  it  is  not  competent  to  show  title  in 
any  other  mode,  unless  by  formal  conveyance.  Harborough  v.  Shardlow,  2 
Railw.  C.  253  ;  7  M.  &  W.  87.  In  Graff  v.  The  City  of  Baltimore,  10  Md.  R. 
544,  it  was  held,  under  a  statute  for  enabling  the  city  to  supply  pure  water, 
and  to  take  land  upon  valuation  by  a  jury,  and  compensation  to  the  owners,  and 
that  where  "  such  valuation  is  paid,  or  tendered,  to  the  owner  or  owners"  of 
the  property,  it  "  shall  entitle  the  city  to  the  use,  estate,  and  interest  in  the 
same,  thus  valued,  as  fully  as  if  it  had  been  conveyed  by  the  owners" ;  that  the 
city  is  not  bound  by  the  mere  inquisition  and  judgment  thereon,  but  could  right- 
fully abandon  the  location  ;  and  that  payment,  or  tender,  under  the  statute,  was 
indispensable  to  the  vesting  of  the  title.  But  it  was  held,  that  the  city  may  be 
made  liable,  in  another  form  of  proceeding,  to  the  land-owner,  for  any  loss  or 
damage,  he  may  have  sustained,  by  reason  of  the  conduct  of  the  municipal  au- 
thority in  the  premises. 

12  R.  &  G.  Railw.  Co.  v.  Davis,  2  Dev.  &  Bat.  451.  But  in  New  Jersey  it 
was  held  that  the  supervisors,  in  laying  out  roads,  are  bound  to  award  damages 
to  land-owners,  with  their  return,  or  the  whole  proceeding  is  illegal  and  void. 
State  v.  Garretson,  3  Zab.  388. 

13  State  v.  Dawson,  3  Hill  (S.  C),  100.  In  this  case  Mr.  Justice  Richard- 
son dissents  from  the  decision  of  the  court,  and  it  is  generally  allowed  that  his 
opinion  contains  the  better  law.  His  argument,  in  the  language  of  the  author  of 
the  Commentaries,  vol.  2,  ubi  supra,  "was  very  elaborate  and  powerful."  See 
Louisville  Railw.  Co.  v.  Chappell,  1  Rice,  383  ;  Lindsay  v.  The  Commissioners, 
2  Bay,  38. 


§  74. 


APPRAISAL    INCLUDES    CONSEQUENTIAL    DAMAGES. 


287 


♦SECTION    XII. 


Appraisal  includes  Consequential  Damages. 


1.  Consequential  damage  barred. 

2.  Such  as  damage,  by  blasting  rock. 

3.  But  not  where  other  land  is  used  unneces- 

sarily. 

4.  But  loss  by  fires,  obstruction  of  access,  and 

cutting  off' springs  is  barred. 

5.  Loss  by  flowing  land  not  barred. 


6.  Damages,  from  not  building  upon  the  plan 

contemplated,  are  barred. 

7.  Special  statutory  remedies  reach  such  dam- 

ages. 

8.  Exposure  of  land  to  fires. 

9.  No  action  lies  for  damage  sustained  by  the 

use  of  a  railway. 


§  74.  1.  It  is  requisite  that  the  tribunal  appraising  land  dam- 
ages, for  lands  condemned  for  railways,  should  take  into  consid- 
eration all  such  incidental  loss,  inconvenience,  and  damage,  as 
may  reasonably  be  expected  to  result  from  the  construction  and 
use  of  the  road,  in  a  legal  and  proper  manner.  And  as  all  tribu- 
nals, having  jurisdiction  of  any  particular  subject-matter,  are 
presumed  to  take  into  consideration  all  the  elements  legally  con- 
stituting their  judgments,  such  incidental  loss  and  damage  will 
be  barred,  by  the  appraisal,  whether  in  fact  included  in  the  esti- 
mate or  not. 

2.  Hence  damage  done  by  the  contractors  to  the  remaining 
land,  by  blasting  rocks,  in  the  course  of  construction,  has  been 
held  to  be  barred,  as  included  in  the  estimated  compensation  for 
the  land  taken.1 

1  Dodge  v.  The  County  Commissioners,  3  Met.  380  ;  Sabin  v.  Vermont  Cen- 
tral Railw.,  25  Vt.  R.  363;  Dearborns.  Boston,  Concord,  &  Montreal  Railw., 
4  Foster,  179,  187.  But  in  Hay  v.  Cohoes  Company,  2  Comst.  159,  the  de- 
fendants, a  corporation,  dug  a  canal  upon  their  own  land,  for  the  purposes  au- 
thorized by  their  own  charter.  In  so  doing  it  was  necessary  to  blast  rocks,  and 
the  fragments  were  thrown  against  and  injured  the  plaintiff's  dwelling,  upon 
land  adjoining,  and  it  was  held  the  defendants  were  liable  to  a  special  ac- 
tion for  the  injury,  although  no  negligence  or  want  of  skill  was  alleged  or 
proved :  and  in  Tremain  v.  Cohoes  Company,  2  Comst.  163,  a  precisely  similar 
action,  it  was  held  that  evidence  to  show  the  work  done  in  the  most  careful  man- 
ner was  inadmissible,  there  being  no  claim  for  exemplary  damages. 

But  there  is  probably  an  essential  difference  between  the  case  of  a  railway,  in 
the  construction  of  which  blasting  rocks  is  almost  indispensable,  and  that  of  a 
manufacturing  company,  or  other  proprietor,  who  may  find  it  convenient  to  blast 

*152 


288  EMINENT   DOMAIN.  §   74. 

*  3.  But  it  was  held  that  this  did  not  preclude  the  land-owner 
from  recovering  damages  for  using  land  adjoining  the  land  taken 

rocks  upon  his  premises,  to  increase  their  utility  or  beauty.  But  for  doing  what 
the  act  does  not  authorize,  or  doing  what  it  does  authorize,  improperly,  a  rail- 
way company  is  liable  to  an  action.  Turnery.  Sheffield  &  R.  Railw.,  10  M. 
&  W.  425. 

In  Carman  v.  Steubenville  &  Ind.  Railw.,  4  Ohio  St.  399,  it  seems  to  be 
taken  for  granted,  that  throwing  fragments  of  rock,  by  blasting,  upon  the  land  of 
adjoining  proprietors,  is  an  actionable  injury,  and  as  in  this  case  it  was  done  by 
the  contractor  in  the  performance  of  his  contract,  in  the  manner  stipulated,  the 
company  were  held  liable. 

The  result  of  the  cases  would  seem  to  be,  that  where  the  damage  done,  by 
blasting  rocks,  or  in  any  similar  mode,  in  the  course  of  the  construction  of  a  rail- 
way, is  done  to  land,  a  portion  of  which  is  taken  by  the  company  under  compul- 
sory powers,  this  damage  will  not  lay  the  foundation  of  an  action,  in  any  form,  as 
it  should  be  taken  into  account  in  estimating  the  compensation  to  the  land-owner 
for  the  portion  of  land  taken.  Brown  v.  Prov.  Warren,  &  Bristol  Railw.,  5 
Gray,  35.  And  if  not  included  in  the  appraisal,  it  is  nevertheless  barred.  Dodge 
V.  County  Commissioners,  supra. 

But  if  the  damage  is  done  to  land,  no  part  of  which  is  taken,  and  where  no 
land  of  the  same  owner  is  taken,  it  may  be  recovered,  under  the  statute,  if  pro- 
vision is  made  for  giving  compensation  for  consequential  damage,  or  where  lands 
are  "  injuriously  affected.1'  But  if  the  statute  contain  no  such  provision,  the  only 
remedy  will  be  by  a  general  action.  And  in  this  view  many  of  the  cases  cited 
above  seem  to  assume,  that  blasting  rocks,  by  an  ordinary  proprietor  of  land,  is  a 
nuisance  to  adjoining  proprietors  if  so  conducted  as  to  do  them  serious  damage. 
And  this  is  the  ground  upon  which  the  case  of  Carman  v.  Steubenville  &  Ind. 
Railw.  is  decided,  without  much  examination  of  this  point,  indeed,  and  by  a  di- 
vided court.  But  if  a  railway  is  not  liable  for  necessary  consequential  damage, 
unless  the  statute  gives  a  remedy  {j)ost,  §  75) ,  it  may  perhaps  be  questioned  how 
far  a  recovery  could  be  maintained,  in  a  general  action  for  damage  done  by 
blasting  rocks,  as  that  is  confessedly  within  the  range  of  their  powers.  See  opin- 
ion of  Shaw,  Ch.  J.,  in  Dodge  v.  County  Commissioners,  3  Met.  380  :  "  An  au- 
thority to  construct  any  public  work  carries  with  it  an  authority  to  use  the  ap- 
propriate means.  An  authority  to  make  a  railway  is  an  authority  to  reduce  the 
line  of  the  road  to  a  level,  and  for  that  purpose  to  make  cuts,  as  well  through 
ledges  of  rock  as  through  banks  of  earth.  In  a  remote  and  detached  place, 
where  due  precaution  can  be  taken  to  prevent  danger  to  persons,  blasting  by 
gunpowder  is  a  reasonable  and  appropriate  mode  of  executing  such  a  work ;  and, 
if  due  precautions  are  taken  to  prevent  unnecessary  damage,  is  a  justifiable  mode. 
It  follows  that  the  necessary  damage  occasioned  thereby  to  a  dwelling-house  or 
other  building,  which  cannot  be  removed  out  of  the  way  of  such  danger,  is  one 
of  the  natural  and  unavoidable  consequences  of  executing  the  work,  and  within 
the  provisions  of  the  statute. 

"  Of  course,  this  reasoning  will  not  apply  to  damages  occasioned  by  careless- 
*153 


§74.  APPRAISAL   INCLUDES   CONSEQUENTIAL   DAMAGES.  2'89 

*  for  a  cart-way,  where  six  rods  were  allowed  to  be  taken  by  the 
company  throughout  the  line  of  the  road,  which  would  give 
ample  space  for  cart-ways  upon  the  land  taken.2  But  it  was 
held,  in  another  case,  that  the  company  were  not  liable  for  en- 
tering upon  the  adjoining  lands,  and  occupying  the  same  with 
temporary  dwellings,  stables,  and  blacksmith  shops,  provided  no 
more  was  taken  than  was  necessary  for  that  purpose.3 

4.  So  it  is  settled  that  the  appraisal  of  land  damages  is  a  bar 
to  claims  for  injuries  by  fire,  from  the  engines  obstructing  access 
to  buildings,  exposing  persons  or  cattle  to  injury,  and  many  such 
risks.4  And  it  will  make  no  difference,  that  the  damages  were 
aiot  known  to  the  appraisers,  or  capable  of  anticipation  at  the 
time  of  assessing  land  damages  ;5  as  where  a  spring  of  water  is 
cut  off  by  an  excavation  for  the  bed  of  a  railway  fifteen  feet  be- 

tvess  or  Regligep.ce  in  executing  suck  a  work.  Such  careless  or  negligent  act 
would  be  a  tort,  for  which  an  action  at  law  would  lie  against  kirn  who  commits. 
or  'him  wko  commands  it.  But  where  all  due  precautions  are  taken,  and  dam- 
age is  still  necessarily  done  to  fixed  property,  it  alike  is  within  the  letter  and  the 
equity  of  the  statute,  and  the  county  commissioners  have  authority  to  assess  the 
-damages.  This  court  are  therefore  of  opinion,  that  an  alternative  writ  of  man- 
damus be  awarded  to  the  county  commissioners,  to  assess  the  petitioners'  dam- 
ages, or  return  their  reasons  for  not  doing  so."  See  also  Pottstown  Gas  Co.  V' 
Murphy,  39  Penn.  St  257. 

2  Sabin  v.  Vermont  Central  Railw.,  25  Vt.  R.  363. 

*  Lauderbrun  v.  Duffy,  2  Penn.  St.  398.  But  it  seems  questionable  whether 
this  case  can  be  maintained  as  a  general  rule. 

But  if  a  party  is  entitled  to  compensation  for  injuries  of  this  kind,  as  where  his 
lands  adjoining  the  railway,  and  no  part  of  which  is  taken,  are  injuriously  af- 
fected, as  by  blasting  rocks,  his  only  remedy  is  under  the  statute.  Dodge  v. 
County  Commissioners,  3  Met.  380. 

4  Phila.  &  Reading  Railw.  v.  Yeiser,  8  Penn.  St.  366  •  s.  c.  2  Am.  Railw.  C. 
325;  Aldrich  v.  Cheshire  Railw.,  1  Foster,  359  ;  s.  c.  1  Am.  Railw.  C.  206  ;  Mason 
v.  Kennebec  &  Port.  Railw.,  31  Maine,  R.  215.  See  also  Furniss  v.  Hudson 
River  Railw.,  5  Sand.  551  ;  Huyett  v.  Phil.  &  Read.  Railw.,  23  Penn.  St.  373  ; 
wife,  §§  71,  72.  See  also  Lafayette  Plank  Road  Co.  v.  New  Albany  &c.  Railw. 
Co.,  13  Ind.  R.  90. 

5  Aldrich  v.  Cheshire  Railw.,  supra.  But  see  Lawrence  v.  Great  Northern 
Railw.,  4  Eng.  L.  &  Eq.  265. 

So,  also,  where  the  company's  works  cut  off  a  spring  of  water,  below  high- 
water  mark,  on  a  navigable  river,  it  was  held  the  riparian  owner  was  entitled  to 
claim  damages  of  them  on  that  account,  in  a  proceeding  under  the  statute.  Le- 
high Valley  Railw.  v.  Trone,  28  Penn.  St.  206, 

VOL.  I.  19  *154 


290  EMINENT    DOMAIN.  §  74. 

low  the  surface,  from  which  the  plaintiff's  buildings  had  been 
supplied  with  water. 

5.  But  it  was  held,  that  where,  in  the  construction  of  a  canal, 
with  waste  weirs,  erected  by  direction,  and  under  the  inspection 
of  the  commissioners  appointed  to  designate  the  route  of  the 
canal,  with  all  the  works  connected  therewith,  and  to  appraise 
damages,  the  waste  water,  after  flowing  over  the  land  of  adjoin- 
ing proprietors,  flowed  upon  the  land  of  the  plantiff,  and  thereby 
greatly  injured  it,  that  he  was  entitled  to  recover  damages.6 
But  the  occasional  flow  of  land  by  water  caused  by  public  works 
is  to  be  estimated  as  part  of  the  damages  under  the  English 
statute.7 

6.  And  where  the  appraisal  of  land  damages  is  reduced  below 

°  Hooker  v.  New  Haven  &  Northampton  Co.,  14  Conn.  R.  14G ;  s.  c.  15  Conn. 
R.  312. 

But  in  such  case,  the  owner  of  property  overflowed  by  water,  through  the 
defective  construction  of  a  railway,  is  bound  to  use  reasonable  care,  skill,  and 
diligence,  adapted  to  the  occasion,  to  arrest  the  injury,  and  if  he  do  not,  not- 
withstanding the  first  fault  was  on  the  part  of  the  company,  he  must  be  regarded 
as  himself  the  cause  of  all  damage,  which  he  might  have  prevented  by  the  use 
of  such  care,  diligence,  and  skill.  Chase  v.  The  N.  Y.  Central  Railw.,  24  Barb. 
273. 

The  same  rule  was  adopted  by  a  special  referee,  in  Lemmex  v.  Vermont 
Central  Railw.,  in  regard  to  damage  to  wool,  by  being  exposed  to  rain  at  one 
of  the  company's  stations,  through  the  fault  of  the  agents  of  the  company, 
whei'e  the  owner  did  not  remove  it,  as  soon  after  he  obtained  knowledge  of  its 
condition,  or  take  as  effective  measures  to  arrest  the  injury  as  he  reasonably 
should  have  done.  It  was  held  the  company  were  only  liable  for  such  damage 
as  necessarily  resulted  from  their  own  fault,  and  beyond  that  the  plaintiff  must 
be  regarded  as  the  cause  of  his  own  loss.     See  also  post,  §  180. 

The  assessment  of  compensation  for  land  taken  for  a  railway  covers  all 
damages,  whether  foreseen  or  not,  and  whether  actually  estimated  or  not,  which 
result  from  the  proper  construction  of  the  road.  But  the  company  are  liable  to 
an  action  for  damages  resulting  to  any  one  from  the  defective  construction  of 
their  road  In  the  present  case  the  plaintiff's  meadows  were  injured,  in  conse- 
quence of  the  insufficient  culverts  in  the  defendant's  road,  there  being  no  im- 
pediment to  the  construction  of  proper  ones.  Suitable  bridges  and  culverts  to 
convey  the  water  across  the  railway,  at  or  near  the  places  where  it  naturally 
flows,  are  necessary  to  the  proper  construction  of  the  road,  except  where  they 
cannot  be  made,  or  where  the  expense  of  making  them  is  greatly  disproportionate 
to  the  interests  to  be  preserved  by  them.  Johnson  v.  At.  &  St.  Law.  Railw.,  35 
N.  H.  R.  569. 

7  Ware  v.  Regent's  Canal  Co.,  3  Dc  G.  &  J.  212. 


§  74.  APPRAISAL  INCLUDES   CONSEQUENTIAL   DAMAGES.  291 

what  it  otherwise  would  have  been,  by  the  representations  of  the 
agents  of  the  company  that  the  road  would  be  constructed  in  a 
particular  manner,  made  at  the  time  of  the  appraisal  to  the  com- 
missioners, and  which  representations  are  not  fulfilled  in  the 
actual  *  construction  of  the  road,  whereby  the  plaintiff  sustained 
serious  loss  and  injury,  it  was  held,  that  the  adjudication  of  the 
commissioners  was  a  merger  of  all  previous  negotiations  upon 
the  subject,  and  that  no  action  could  be  maintained  for  con- 
structing the  railway  contrary  to  such  representations,  provided 
it  was  done  in  a  prudent  and  proper  manner.8 

7.  But  where  no  part  of  the  plaintiff's  land  is  taken,  and  the 
statute  gives  all  parties  suffering  damage  by  the  construction  of 
railways  the  right  to  recover,  as  in  England,  and  some  of  the 
American  states,  and  the  water  is  drawn  off  from  plaintiff's 
well  upon  lands  adjoining  the  railway,  he  may  recover.9  So,  too, 
may  the  proprietor  of  a  mill-pond  recover  damages,  sustained  by 
the  construction  of  a  railway  across  the  same,  although  the  dam 
were  authorized  by  the  legislature,  upon  a  navigable  river;  and 
in  constructing  it,  the  conditions  of  the  act  were  not  complied 
with.10 

8.  But  it  has  been  held  that  the  appraisers  are  not  to  estimate 
increased  damages  to  a  land-owner  in  consequence  of  the  ex- 
posure of  the  remaining  land  to  fires  by  the  company's  engines.11 

8  Butman  v.  Vt.  C.  Railw.  Co.,  27  Vt.  R.  500.  See  also  Railw.  Co.  v.  Washing- 
ton, 1  Rob.  G7  ;  B.  &  S.  Railroad  Co.  v.  Coinpton,  2  Gill,  20,  28 ;  ante,  §  71  ;  Kyle 
v.  Auburn  &  Roch.  Railw.,  2  Barb.  Ch.  489.  But  see  Wheeler  v.  Roch.  &  Sy. 
Railw.,  12  Barb.  227,  where  it  is  held  that  a  railway  company  will  be  enjoined 
from  building  a  road-crossing  at  a  different  place  from  that  named  at  the  time 
damages  were  assessed.  But  it  has  been  held,  that  it  was  competent  for  the 
company  to  show,  by  experts,  the  necessity  of  putting  a  culvert  through  an  em- 
bankment, at  a  particular  point,  in  order  to  preserve  the  work,  as  an  answer  to 
a  claim  for  damages  on  account  of  the  prospective  obstruction  of  the  water,  and 
setting  it  back  upon  the  land  at  that  point,  by  the  embankment.  But  it  should 
be  shown  that  such  culvert  is  absolutely  indispensable,  before  any  deduction  can 
be  made  on  that  account,  unless  the  company  are  in  some  legal  way  bound  to 
make  it.  The  company  are  not  estopped  from  proving  this  necessity  because  the 
plat  of  the  location  of  the  road  does  not  indicate  a  culvert  at  that  point.  Nason 
v.  Woonsocket  Union  Railw.,  4  Rhode  Island  R.  377.     Post,  §  93. 

9  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107.^ 

10  White  v.  South  Shore  Railw.,  6  Cush.  412. 

11  Sunbury  &  Erie  Railw.  v.  Hummel,  27  Penn.  St.  99,  Lewis,  Ch.  J.,  and 

*155 


292  EMINENT   DOMAIN.  §  74. 

Nor  can  any  common-law  action  be  sustained  for  such  damage 
unless  where  actual  loss  intervenes  through  the  negligence  of  the 
company.11 

Black,  J.,  dissenting.  The  general  current  of  authority  seems  to  ns  with  the 
minority  of  the.  court.  And  in  Lehigh  Valley  Railw.  v.  Lazarus,  28  Penn.  St. 
203,  the  case  of  Yeizer,  8  Penn.  St.  366,  ante,  n.  4,  is  regarded,  by  the  reporter  of 
that  state,  as  overruled.  But  in  an  action  of  trespass  against  a  railway  com- 
pany for  constructing  their  road  through  plaintiff's  land,  and  thereby  prevent- 
ing his  cattle  thriving,  this  latter  injury  is  not  so  remote  a  consequence  of  the 
act  charged  that  it  may  not  be  made  a  ground  of  claiming  damage,  when  spe- 
cially alleged  in  the  declaration.  Baltimore  &  Ohio  R.  v.  Thomson,  10  Md.  11.  76. 
If  we  understand  the  ground  assumed  by  the  court  in  Pennsylvania,  at  the  pres- 
ent time,  it  is,  that  an  injury  to  buildings,  standing  near  the  line  of  a  railway,  by 
fire  from  the  companies'  engines,  when  properly  constructed  and  prudently  man- 
aged, is  too  remote  and  uncertain  to  form  an  element  in  estimating  damages  to 
the  land-owner,  either  when  part  of  the  land  is  taken,  or  the  statute  provides  for 
damages  to  all  persons  "injuriously  affected"  by  the  company's  works.  We  are 
entirely  conscious  of  the  embarrassment  attending  all  attempts  to  define  the 
class  of  injuries,  which  do,  or  which  do  not,  come  within  the  rule  of  legal  conse- 
quential injuries,  by  the  construction  or  operation  of  railways.  But  it  seems 
important  to  distinguish  between  a  railway,  as  one  of  the  legitimate  uses  to 
which  the  proprietor  of  land  might  put  it,  for  the  purpose  of  private  transporta- 
tion, and  upon  which  he  might  no  doubt  use  locomotive  steam  engines,  and  the 
use  of  such  engines  upon  a  public  railway. 

In  the  former  case  the  land-owner  would  not  be  liable  to  an  adjoining  pro- 
prietor except  for  want  of  care,  skill,  or  prudence  in  the  construction  or  use  of 
his  engines.  The  same  would  probably  be  true  of  a  public  company,  if  the 
legislature  did  not  subject  them  to  any  consequential  damage  resulting  from  the 
nature  of  their  business.  But  where  they  are,  as  in  England,  and  many  of  the 
American  states,  made  liable,  either  as  part  of  the  price  of  land  taken,  or  as  a 
distinct  ground  of  claim,  to  all  consequential  damage  caused  to  the  land-owner, 
both  by  the  construction  and  operation  of  their  road  or  either  of  them,  in  a 
prudent  and  proper  manner,  it  seems  difficult  to  escape  the  conclusion,  that  the 
exposure  of  property  along  the  line  of  a  railway  to  loss  by  fires  communicated 
by  the  company's  engines,  is  one  of  the  most  direct  sources  of  consequential  in- 
jury which  can  be  imagined.  It  is  more  direct  and  substantial  than  that  from 
noise,  dirt,  dust,  smoke,  and  vibration  of  the  soil,  all  which,  under  circumstances, 
have  been  held  proper  elements  of  damage  to  be  considered.  Perhaps  none  of 
them  are  absolutely  grounds  of  giving  damage  in  all  cases.  That  depends  very 
much  upon  the  nearness  of  the  track  to  the  land.  And  other  circumstances 
may  perhaps  deserve  consideration,  in  many  cases.  But  where  the  track  passes 
directly  through  lands,  near* where  buildings  are  already  erected,  it  is  difficult 
to  conjecture  upon  what  ground  it  could  be  claimed,  that  the  increased  exposure 
to  fire  was  not  a  serious  detriment  to  the  owner.     It  is  certain  it  must  very  seri- 


§  74.  APPRAISAL   INCLUDES   CONSEQUENTIAL   DAMAGES.  293 

9.  In  a  recent  English  ease 12  it  was  held,  after  extended  argu- 
ment and  careful  consideration,  that  the  owner  of  a  house  situ- 
ated close  to  a  railway,  and  which  suffers  depreciation  in  value 
from  vibration  and  smoke,  not  caused  by  any  negligent  user  of 
the  railway,  but  being  the  inevitable  result  of  the  ordinary  user, 
has  no  right  to  compensation  under  the  English  statute,  or  by 
distinct  action  at  law.  The  case  is  put  upon  the  ground  that 
the  legislature  having  legalized  the  use  of  locomotive  steam 
engines  by  railway  companies,  adjoining  proprietors  must  sub- 
mit to  the  inevitable  consequences  of  a  lawful  business,  however 
inconvenient  it  may  become ;  and  can  sustain  no  action  for 
damages  any  more  than  for  the  exercise  of  any  other  legal  busi- 
ness which  might  depreciate  the  value  of  property  in  the  neigh- 
borhood. The  English  statutes  are  construed  to  give  compensa- 
tion only  for  injuries  sustained  by  construction  and  not  by  the 
use  of  a  railway. 

ously  enhance  the  rate  of  insurance,  and  proportionally  diminish  the  value  of 
the  rent,  and  of  the  buildings. 

As  was  said  by  Shaw,  C.  J.,  Proprietors  of  Locks  &  Canals  v.  Nashua  & 
Lowell  Railw.,  10  Cush.  385,  it  is  incumbent  upon  one  who  claims  damage 
on  this  ground,  to  show  that  the  company's  track  ran  so  near  his  buildings 
"  as  to  cause  imminent  and  appreciable  danger  by  fire."  When  it  is  under- 
taken to  be  decided,  as  a  question  of  law,  that  in  no  case  is  danger  from  fire, 
by  the  proper  use  of  the  company's  engines,  to  be  considered  in  estimating 
land  damages,  it  is  certainly  contrary  to  the  general  course  of  decisions  upon 
the  subject,  if  not  to  the  very  principle  upon  which  such  companies  have  been 
subjected  to  such  damages  as  they  cause  to  land-owners,  beyond  what  accrues 
from  the  ordinary  use  of  lands  for  building  and  agricultural  purposes.  These 
decisions  in  Pennsylvania  are  still  maintained  there,  and  the  rule  has  been  ap- 
plied to  the  case  of  buildings  where  the  owner  is  compelled  to  pay  a  higher  rate 
of  insurance  in  consequence  of  the  proximity  of  the  railway.  Patten  v.  Northern 
Central  Railw.,  33  Penn.  St.  426.  It  is  here  maintained  that  any  claim  for 
damages  in  consequence  of  the  mere  intrusion  of  noise  and  bustle  upon  one's 
seclusion  is  essentially  anti-social,  and  at  war  with  the  fundamental  laws  of  so- 
ciety, which  we  should  not  be  inclined  to  question.  And  as  to  all  mere  conjec- 
tural or  contingent  advantages  and  disadvantages,  it  may  well  be  said  they  are 
too  remote  to  form  an  element  in  estimating  land  damages.  Searle  v.  Lacka- 
wanna Railw.,  33  Penn.  St.  57.  But  we  cannot  admit  that  either  of  these  rules 
has  any  just  application  to  exposure  to  fire  from  the  company's  engines,  where 
the  danger  is  certain  and  inevitable.     Post,  §  82. 

12  Brand  v.  Hammersmith  &  City  Railw.  Co.,  12  Jur.  N.  S.  336.  See  also 
Lafayette  Plank-Road  Co.  v.  New  Albany  Railw.  Co.,  13  Ind.  R.  90. 


294 


EMINENT   DOMAIN. 


§75. 


SECTION    XIII. 


Action  for  Consequential  Damages. 


1.  Statute  remedy  for  lands  "  injuriously  af- 

fected." 

2.  Without  statute  not  liable  to  action. 

3.  Are  liable  for  negligence  in  construction,  or 

use. 

4.  Statute  remedy  exclusive. 


5.  Minerals  reserved. 

6.  Damages  for  taking  land  of  railway  for 

highway. 

7.  Compensation  for  minerals,  when  recover- 

able. 


§75.  1.  The  liability  of  railways  for  consequential  damage  to 
the  adjoining  land-owners  must  depend  upon  the  provisions  in 
*  their  charters,  and  the  general  laws  of  the  state.  In  England 
railway  companies  are,  by  express  statute,1  made  liable  to  the 
owners  of  all  lands  "  injuriously  affected  "  by  their  railways. 
And  under  this  statute  it  has  been  determined,  that  if  the  com- 
pany do  any  act,  which  would  be  an  actionable  injury,  without 
the  protection  of  the  special  act  of  the  legislature,  they  are  liable 
under  the  statute.2  So  that  there,  any  act  of  a  railway  company 
amounting  to  a  nuisance  in  a  private  person,  and  causing  special 
damage  to  any  particular  land-owner,  is  good  ground  of  claiming 
damages  under  this  section  of  the  statute.3 

2.  But  in  the  absence  of  all  statutory  provision  upon  the  sub- 
ject, railways  are  not  liable  for  necessary  consequential  damages 
to  land-owners,  no  portion  of  whose  land  is  taken,  where  they 
construct  and  operate  their  roads  in  a  skilful  and  prudent  man- 
ner.4 

1  8  and  9  Vict.  c.  8,  §  68. 

a  Glover  v.  The  North  Staffordshire  Railw.  Co.,  5  Eng.  L.  &  Eq.  335;  post, 
§82. 

3  Hatch  v.  Vt.  Central  Railw.  Co.,  25  Vt.  II.  49.     See  §  82,  post. 

4  Monongahela  Nav.  Co.  v.  Coons,  6  Watts  &  S.  101  ;  Radcliff  v.  The  Mayor 
of  Brooklyn,  4  Comstock,  195;  Phil.  &  Trenton  Railw.  Co.,  6  Wharton,  25; 
Seneca  Road  Co.  v.  Aub.  &  Roch.  Railw.  Co.,  5  Hill  (N.  Y.),  170;  Hatch 
v.  Vt.  Central  Railw.,  25  Vt.  R.  49 ;  Richardson  v.  Vt.  Central  Railw.  Co.,  25 
Vt.  R.  465. 

There  are  many  other  cases  confirming  the  same  general  view  stated  in  the 
text.     Henry  v.  Pittsburgh  &  Allegheny  Bridge  Co.,  8  Watts  &  Serg.  85 ;    Ca- 
nandaigua  &  Niagara  Railw.  v.  Payne,  16  Barb.  273,  where  it  is  held,  that  in- 
*156 


§  75.  ACTION   FOR   CONSEQUENTIAL   DAMAGES.  295 

*  3.  But  if  the  railways  are  guilty  of  imprudence,  or  want  of 
skill,  either  in  the  construction  or  use  of  their  road,  they  are 

jury  to  a  mill  upon  another  Jot  of  the  same  landowner,  in  consequence  of  the 
construction  and  operation  of  the  railway,  is  a  matter  with  which  the  commis- 
sioners have  nothing  to  do  in  estimating  damages  for  land.  So  in  Troy  & 
Boston  Railw.  v.  Northern  Turnpike,  1G  Barb.  100,  it  was  held  that  the  con- 
sideration that  the  business  of  a  turnpike,  which  claimed  damage,  would  be 
diminished  by  the  construction  of  the  railway  along  the  same  line  of  travel, 
should  be  disregarded  in  estimating  damage  to  such  turnpike.  "  Every  public 
improvement,"  say  the  court,  "  must  affect  some  property  favorably,  and  some 
unfavorably,  from  the  necessity  of  the  case.  When  this  effect  is  merely  conse- 
quential the  injury  is  damnum  absque  injuria.  Though  their  property  has  un- 
doubtedly depi'eciated  by  the  construction  of  the  railway,  yet  the  turnpike  com- 
pany enjoy  all  the  rights  and  privileges  secured  to  them  by  their  charter,  and 
no  vested  rights  have  been  violated." 

Nor  is  one  entitled  to  damage,  in  consequence  of  a  highway  being  laid  upon 
his  line,  thus  compelling  him  to  maintain  the  whole  fence.  Kennett's  Petition, 
4  Foster,  139.  In  Albany  Northern  Railw.  i\  Lansing,  16  Barb.  68,  it  is  said, 
"  The  commissioners,  in  estimating  the  damages,  should  not  allow  consequential 
and  prospective  damages." 

In  Plant  v.  Long  Island  Railw.,  10  Barb.  26,  it  is  held  not  to  be  an  illegal  use 
of  a  street  to  allow  a  railway  track  to  be  laid  upon  it,  and  that  the  temporary 
inconvenience  to  which  the  adjoining  proprietors  are  subject  while  the  work  of 
excavation  and  tunnelling  is  going  on  is  damnum  absque  injuria.  So  also  in  re- 
gard to  the  grade  of  a  street  having  been  altered,  by  a  railway,  by  consent  of  the 
common  council  of  the  city  of  Albany,  who  by  statute  were  required  to  assess 
damages  to  any  freeholder  injured  thereby,  and  who  had  done  so  in  this  case,  it 
was  held  that  no  action  could  be  maintained  against  the  railway.  Chapman  v. 
Albany  &  Sch.  Railw.,  10  Barb.  360;  Adams  v.  Saratoga  &  Wash.  Railw.,  11 
Barb.  414. 

And  in  a  late  case  in  Kentucky,  Wolfe  r.  Covington  &  Lexington  Railw.,  15 
B.  Monr.  404,  it  was  held,  the  municipal  authority  of  a  city  might  lawfully 
alter  the  grade  of  a  street,  for  any  public  purpose,  without  incurring  any  respon- 
sibility to  the  adjacent  landholders,  and  might  authorize  the  passage  of  a  railway 
through  the  city,  along  the  streets,  and  give  them  the  power  to  so  alter  the  grade 
of  the  streets,  as  should  be  requisite  for  that  purpose,  this  being  done  at  the  ex- 
pense of  the  company,  and  by  paying  damage  to  such  adjacent  proprietors  as 
should  be  entitled  to  them.  But  one,  who  urged  the  laying  of  the  road  in  that 
place,  on  the  ground  that  it  would  benefit  him,  and  who  was  thereby  benefited, 
cannot  recover  damages  of  the  company,  upon  the  maxim,  "  volenti  non  Jit  inju- 
ria." A  railway,  when  so  authorized,  "  is  not  a  purprestuj-e,  or  encroachment 
upon  the  public  property  or  rights." 

And  where  a  railway  company  erect  a  fence  upon  land  which  they  own  in 
fee,  for  the  purpose  of  keeping  the  snow  off  their  road,  they  are  not  liable  for 
damages  sustained  by  the  owner  of  land  upon  the  opposite  side  of  the  fence,  by 

*157 


29£  EMINENT    DOMAIN.  §  75. 

liable  to  any  one  suffering  special  damage  thereby,5  as  in  need- 
lessly diverting  watercourses  and  streams,  and  not  properly  re- 
storing them,5  whereby  lands  are  overflowed  or  injured.5 

4.  And  the  remedy  given  by  statute  for  taking  or  injuriously 
affecting  lands  is  exclusive  of  all  remedies,  at  common  law, 
by  action,  or  bill  in  equity,  unless  provided  otherwise  in  the 
statute.'* 

the  accumulation  of  snow,  occasioned  by  the  fence.  Carson  v.  Western  Railw., 
Mass.  Sup.  Court,  20  Law  Rep.  350  ;  &.  c.  8-  Gray,  423.  See  also  Morris  &  Essex 
Railw.  v.  Newark,  2  Stock.  Ch.  352. 

And  where  the  act  complained  of  is  the  construction  of  an  embankment,  by 
a  railway  company,  at  the  month  of  a  navigable  creek,  in  which  the  plaintiff 
has  a  prescriptive  right  ©f  storing,  landing,  and  rafting  lumber,  for  the  use  of 
his  saw-mill,  whereby  the  free  flow  of  the  water  is  obstractedr  and  the  plaintiff 
thereby  deprived  of  the  full  enjoyment  of  his  privilege,  the  injury  is  regarded 
as  the  direct  and  immediate  consequence  of  the  act  of  the  company,  and  they 
are  liable  for  the  damages  thereby  sustained.  Tinsinan  v.  The  Belvidere  Dela- 
ware Railw.  Co.,  2  Dutcher,  148. 

See  also  Rogers  v.  Kennebec  &  Portland  Railw.,  35  Me.  R.  319;  Burton  v. 
Philadelphia  W.  &  B.  Railw.,  4  Harr.  252;  Hollister  v.  Union  Co.,  9  Conn.  R. 
436 ;  Whittier  v.  Portland  &  Kennebec  Railw.,  38  Maine  R.  26. 

s  Whitcomb  v.  Vt.  Central  Railw.  Co.,  25  Vt.  R.  69;  Hooker  v.  N.  H.  &  N. 
Y.  Railw.  Co.,  14  Conn.  R.  146;  post,  §  79.  And  tbere  is  the  same  liability 
although  the  lands  are  not  situate  upon  the  stream.  Brown  a.  Cayuga  &  Sus- 
quehannah  Railw.,  2  Kernan,  486. 

A  party  is  liable  to  an  action  for  diverting-  the  water  from  a  spring,  which  ran 
in  a  well-defined  channel  into  a  stream  supplying  a  mill,  at  the  suit  of  the  mill- 
owner,  notwithstanding  he  had  permission  from  the  owner  of  the  land  where  the 
spring  arose.  Alitor  if  the  spring  spread  out  upon  the  land,  having  no  channel. 
As  the  land-owner  might  drain  bis  land,  so  be  may  give  permission  to  others  to. 
do  so.  Dudden  v.  The  Union,  1  Hurlstone  &  Norman,  627.  See  also  Brown 
v.  Illius,  27  Conn.  R.  84  ;  Robinson  v.  New  York  &  Erie  Railw.,  27  Barb.  512; 
Waterman  v.  Conn.  &  Pass.  Riv.  Railw.,  30  Vt.  610;  Henry  v.  Vermont  Cen- 
tral Railw.,  Id.  638.  But  in  this  last  case  it  was  decided  that  the  effect  ©f 
erecting  a  bridge  in  a  stream  upon  the  course  of  the  current  below  was  so  far 
incapable  of  being  known  or  guarded  against,  that  there  was  no  duty  imposed 
upon  railway  companies  to  guard  against  an  injury  to  land-owners  below  by  a 
change  of  the  current.  See,  also,  New  Albany  &  C.  Railw.  Co.  v.  Higman,  18 
Ind.  R.  77;  Same  v.  Huff,  19  Id.  315  ;  Colcough  v.  Nashville  &  N.  W.  Railw. 
Co.,  2  Head,  171. 

*  Regina  v.  Eastern  Counties  Railw.,  3  Railw.  C.  466.  But  in  this  case  the 
act  expressly  provided,  that  the  verdict  and  judgment  should  be  conclusive  and 
binding,  which  most  railway  acts  do  not ;  but  it  seems  questionable  if  this  will 
make  any  difference.  E.  &  W.  I.  Docks,  &c.  v.  Gattke,  3  Eng.  L.  &  Eq.  59 ; 
post,  §  81. 


§  75.  ACTION   FOR   CONSEQUENTIAL   DAMAGES.  297 

5.  But  in  a  late  English  case,7  the  House  of  Lords  held,  that  a 
*  railway  company  which  had  been  condemned  to  pay  for  land, 
the  owner  reserving  the  minerals,  were  not  liable  to  the  land- 
owner, by  reason  of  his  inability  to  work  a  mine  which  he  had 
discovered  under  the  railway.  The  Lord  Chancellor  said,  "  The 
conveyance  of  the  surface  of  land  gives  to  the  grantor  an  implied 
right  of  support,  sufficient  for  the  object  contemplated,  from  the 
soil  of  the  grantor,  adjacent  as  well  as  subjacent." 

6.  And  it  has  been  held,  that  in  estimating  damages  to  a  rail- 
way in  consequence  of  laying  a  highway  across  land  occupied 
by  them,  it  is  not  proper  to  take  into  account  the  probable  in- 
crease of  business  to  the  company  in  consequence.8 

7.  And  where  the  company  take  land,  but  decline  to  purchase 
the  minerals  after  notice  from  the  owner  of  his  intention  to 
work  them,  pursuant  to  the  English  statute,  the  company  is  not 
entitled  to  the  subjacent  or  adjacent  support  of  the  minerals. 
And  where  the  company  gave  notice,  under  the  statute,  that  the 
working  of  the  mines  was  likely  to  injure  the  railway,  the 
owner  was  held  entitled  to  recover  compensation  which  had 
been  assessed  under  the  statute.9 

7  Caledonia  Railw.  v.  Sprot,  House  of  Lords,  39  Eng.  L.  &  Eq.  16.  But  in 
Bradley  v.  New  York  &  New  H.  Railw.,  21  Conn.  R.  294,  where  the  defend- 
ants' charter  gave  them  power  to  take  land,  and  made  them  liable  for  all  dam- 
ages to  any  person  or  persons,  and  they  excavated  an  adjoining  lot  to  plaintiff's, 
so  as  to  weaken  the  foundations  of  his  house,  and  erected  an  embankment  in  the 
highway  opposite  his  house,  so  as  to  obscure  the  light,  and  render  it  otherwise 
unfit  for  use,  it  was  held,  that  this  did  not  constitute  a  taking  of  plaintiff's  land, 
but  that  defendants  were  liable  to  consequential  damage  under  their  charter. 

But  in  the  early  case  of  the  Wyrley  Nav.  v.  Bradley,  7  East,  368,  it  is  con- 
sidered that,  where  the  act  of  parliament  reserved  the  right  to  dig  coal  to  the 
proprietor  of  mines,  unless  the  company,  on  notice,  elected  to  purchase  and 
make  compensation,  where  the  canal  was  damaged  by  the  near  approach  of  the 
mine,  after  such  notice,  and  no  compensation  made,  the  coal-owner  was  not 
liable,  although  it  is  there  said  to  be  otherwise  in  case  of  a  house,  undermined 
by  digging  on  the  soil  of  the  grantor.  But  this  case  seems  to  turn  upon  the 
reservation  in  the  grant. 

8  Boston  &  Maine  Railw.  v.  County  of  Middlesex,  1  Allen,  324.  The  reser- 
vation in  a  deed  of  land  to  a  railway  company  of  the  right  to  make  a  crossing 
over  the  land,  creates  an  easement  in  the  land,  but  does  not  extend  such  ease- 
ment across  the  other  lands  of  the  company.     lb. 

9  Fletcher  v.  Great  Western  Railw.,  4  H.  &  N.  242.      And  in  North  Eastern 

♦158 


298 


EMINENT   DOMAIN. 


§76. 


SECTION    XIV. 


Right  to  occupy  Highway. 


1 .  Decisions  conflicting. 

2.  First  held  that  owners  of  the  fee  were  en- 

titled to  additional  damages. 

3.  Principle  seems  to  require  this. 

4.  Many  cases  take  a  different  view. 

5.  Legislatures  may  and  should  require  such 

additional  compensation. 

6.  Courts  of  equity  ivill  not  enjoin  railways 

from  occupying  streets  of  a  city. 

7.  Some  of  the  states  require  such  compensa- 

tion. 
n.   11.  All  do  not.     But  the  English  courts, 
principle,  and  many  of  the  state  courts, 
do  require  it,  as  matter  of  right. 

8.  Recent  decisions  upon  the  rigid  to  occupy 

the  highway. 
1.   The  decisions  in  the  state  of  New  York 
require  compensation  to  the  owner  of 
the  fee. 


2.  Distinction  between  streets  of  cities  and 

highways  in  the  country. 

3.  Legislature  may  control  existing  rail- 

ways. 

4.  In  Ohio  the  owner  of  the  fee  may  claim 

indemnity  against  additional  injury. 

5.  True  distinction,  whether  the  use  is  the 

same. 

6.  The  present  inclination  seems  to  be  to 

require  additional  compensation  for 
laying  street  railway  in  highway. 

7.  Cases  in  the  opposite  direction.    Judge 

Ellsworth's  opinion. 

8.  Explanation  of  the  apparent  confusion. 

9.  Where  permanent   erections  made  in 

street,  compensation  must  be  made. 
10.  Rights  of  land-owners  as  to  obstructing 

railway. 
1 1  -  23.  Recent  cases  in  New  York. 


§  76.  1.  The  decisions  are  contradictory,  in  regard  to  the  right 
of  a  railway  company  to  lay  its  track  along  a  common  highway, 
without  making  additional  compensation  to  land-owners  adjoin- 
ing such  highway,  and  who,  in  the  country,  commonly  own  to 
the  middle  of  the  highway. 

Railw.  Co.  v.  Elliott,  1  J.  &  H.  145 ;  s.  c.  6  Jur.  N.  S.  817,  it  was  held  that  the 
general  principle,  that  a  vendor  of  land  sold  for  a  particular  use  cannot  dero- 
gate from  his  own  grant  by  doing  anything  to  prevent  the  land  sold  from  being 
put  to  that  use,  applies  to  sales  to  railways  under  compulsory  powers.  But  it 
was  here  said  that  this  principle  will  not  compel  the  vendor  of  land  to  perpet- 
uate anything  upon  the  portion  of  the  land  retained  by  him,  which  is  merely 
accidental,  though  existing  and  of  long  standing  at  the  date  of  the  sale.  Hence, 
where  a  railway  company  took  land  for  a  bridge  in  a  mining  district,  where  a 
shaft  had  been  sunk  many  years  before,  but  the  working  of  the  miues  abandoned 
and  the  shaft  filled  with  water  for  a  long  time  before  the  taking  the  land,  it  was 
held  that  the  land-owner  was  not  precluded  from  draining  the  water  and  work- 
ing the  mine,  although  the  effect  must  be  to  lessen  the  support  of  the  bridge  to 
some  extent,  by  withdrawing  the  hydrostatic  pressure  upon  the  roof  of  the  mine, 
and  the  consequent  support  of  the  superincumbent  strata  of  earth. 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  299 

2.  Iii  some  of  the  early  cases,  upon  this  subject,  it  seems  to 
have  been  considered,  that,  under  such  circumstances,  the  land- 
owners were  entitled  to  additional  compensation,  when  the  land 
was  converted  from  a  common  carriage-way  to  a  railway.1 

1  Trustees  of  the  Presbyterian  Society  in  "Waterloo  v.  The  Auburn  &  Roches- 
ter Railw.  Co.,  3  Hill  (N.  Y.),  5G7.  The  case  of  Fletcher  v.  Auburn  &  Syra- 
cuse Railw.  Co.,  25  Wend.  462,  might  have  been  put  upon  the  same  ground, 
but  is  not.  The  ground  assumed  is,  that  the  land-owners  are  entitled  to 
consequential  damage,  in  consequence  of  the  new  use  to  which  the  land  is  put, 
which  amounts  to  nearly  the  same  thing.  Philadelphia  &  Trenton  Railw.,  6 
Wharton,  25 ;  Miller  v.  The  Auburn  &  Syracuse  Railw.  Co.,  6  Hill  (N.  Y.),  61  ; 
Mahon  v.  Utica  &  Schenectady  Railw.,  Lalor's  Supp.  to  Hill  &  Denio,  156.  And 
in  Ramsden  v.  The  Manchester  South  Junction  &  Alt.  Railw.,  1  Exch.  723,  the 
Court  of  Exchequer  expressly  decide,  that  a  railway  company  has  no  right  even 
to  tunnel  under  a  highway,  without  making  previous  compensation  to  the  land- 
owner. Seneca  Road  v.  Auburn  Railw.,  5  Hill,  170;  Troy  v.  Cheshire  Railw. 
Co.  3  Foster,  83.  But  a  distinction  is  taken  between  the  property  of  adjoining 
land-owners  in  the  highway  or  street  in  cities,  and  in  the  country.  In  the 
former  it  has  been  held  that  the  fee  of  the  streets  is  under  the  sole  control  of 
the  municipal  authorities,  and  that  it  is  no  perversion  of  the  legitimate  use  of 
the  streets  to  allow  a  railway  company  to  lay  their  track  upon  them.  Plant  v. 
Long  Island  Railw.  10  Barb.  26;  Adams  v.  Saratoga  &  Washington  Railw.,  11 
Barb.  414  ;  Chapman  v.  Albany  &  Schenectady  Railw.,  10  Barb.  360;  Drake  v. 
Hudson  River  Railw.,  7  Barb.  508;  Applegate  v.  Lexington  &  Ohio  Railw.,  8 
Dana,  289  ;    Wolfe  v.  Covington  &  Lexington  Railw.,  15  B.  Monr.  404. 

In  Williams  v.  New  York  Central  Railw.,  18  Barb.  222,  246,  the  court  say: 
"  A  railroad  is  only  an  improved  highway,  and  the  use  of  a  street,  by  a  railway, 
is  one  of  the  modes  of  enjoying  a  public  easement."  But  see  this  case  reversed, 
post.  A  general  power  to  pass  highways  in  the  construction  of  a  canal,  or 
railway,  has  been  held  to  include  turnpikes  also.  Rogers  v.  Bradshaw,  20  Johns. 
735;  White  River  Turnpike  Co.  v.  Vermont  Central  Railw.,  21  Vt.  R.  590. 
But  the  grant  of  a  railway  from  one  terminus  to  another,  without  prescribing  its 
precise  course  and  direction,  does  not,  prima  facie,  confer  power  to  lay  out  the 
railway  upon  and  along  an  existing  highway.  But  it  is  competent  for  the  legis- 
lature to  grant  such  authority,  either  by  express  words,  or  necessary  implication  ; 
and  such  implication  may  result,  either  from  the  language  of  the  act,  or  from  its 
being  shown,  from  an  application  of  the  act  to  the  subject-matter,  that  the  rail- 
way cannot,  by  reasonable  intendment,  be  laid  in  any  other  line.  Springfield  v. 
Connecticut  River  Railw.,  4  Cush.  63  ;  s.  c.  1  Am.  Railw.  C.  572.  But  in  general, 
the  adjoining  owner  of  land  to  a  highway  is  entitled  to  additional  compensa- 
tion, where  it  is  put  to  a  different  and  more  dangerous  use.  And  towns  have 
an  interest  in  highways  and  bridges,  which  will  enable  them  to  maintain  an 
action  upon  the  case  for  their  obstruction  or  destruction,  and  the  conversion  of 
the  materials.  Troy  v.  Cheshire  Railw.,  3  Foster,  83.  But  the  town  is  not 
liable  to  pay  damages  assessed,  by  the  selectmen,  in  laying  out  a  highway,  at 


300  EMINENT   DOMAIN.  §  76. 

*  3.  There  is  certainly  great  reason  in  this  view,  inasmuch  as 
the  land-owner's  entire  damage  is  to  be  assessed,  at  once,  and  it 

the  request  of  a  railway  company,  made  necessary  to  supply  the  place  of  one 
taken  by  the  company  for  their  track.     Ellis  v.  Swanzey,  6  Foster,  26G. 

In  general,  it  may  be  stated  as  the  settled  doctrine  of  most  of  the  states,  that 
the  owner  of  land,  bounded  upon  a  highway,  owns  to  the  centre  of  the  way. 
■  Buck  v.  Squiers,  22  Vt.  R.  484,  495.  The  general  rule  as  to  monuments,  re- 
ferred to  in  deeds  of  land,  undoubtedly  is,  that  the  centre  of  such  monuments  is 
intended,  whether  it  be  stake,  stones,  tree,  rock,  or  a  highway,  or  stream.  It  is 
undoubtedly  more  a  rule  of  policy  than  of  intention,  and  as  such,  to  answer  its 
end,  should  be  applied  in  every  case,  unless  a  clearly  defined  intention  to  the 
contrary  be  made  to  appear.  3  Kent,  Comm.  433;  Chatham  v.  Brainerd,  11 
Conn.  R.  60;  Champlin  v.  Pendleton,  13  Conn.  R.  23;  Livingston  v.  Mayor  of 
New  York,  8  Wend.  85,  106  ;  Starr  v.  Child,  20  Wend.  149  ;  s.  c.  4  Hill,  369 ; 
Canal  Comm".  v.  People,  5  Wend.  423;  s.  c.  13  Wend.  355;  Johnson  v.  Ander- 
son, 18  Me.  R.  76  ;  Bucknam  v.  Bucknam,  3  Fairfield,  463  ;  Leavitt  v.  Towle,  8 
N.  Hamp.  R.  96  ;  Dovaston  v.  Payne,  2  Smith's  Leading  Cases,  90,  and  notes  by 
Wallace  &  Hare ;  Nicholson  v.  New  York  &  New  Haven  Railw.,  22  Conn. 
R.  74. 

But  the  owner  of  the  fee  of  land,  over  which  a  highway  passes,  cannot  main- 
tain a  bill  in  equity,  to  enforce  an  order  of  commissioners,  as  to  the  manner  of 
constructing  a  railway,  where  it  crosses  the  highway,  but  the  same  should  be 
brought  by  the  principal  executive  officers  of  the  town  or  city.  Brainard  v. 
Conn.  River  Railw.,  7  Cush.  506.  The  court  say  :  "  It  is  only  where  the  owner 
suffers  some  special  damage,  differing  in  kind  from  that  which  is  common  to 
others,  that  a  personal  remedy  accrues  to  him,  and  certainly  no  rule  of  law  rests 
on  a  wiser  or  more  sound  policy.  Were  it  otherwise,  suits  might  be  multiplied 
to  an  indefinite  extent,  so  as  to  create  a  public  evil,  in  many  cases,  much  greater 
than  that  which  was  sought  to  be  redressed."  Stetson  v.  Faxon,  19  Pick.  147; 
Proprietors  of  Quincy  Canal  v.  Newcomb,  7  Met.  276  ;  Smith  v.  Boston,  7  Cush. 
254 ;  Hughes  v.  Providence  &  Worcester  Railw.  Co.,  2  Rhode  Island  R.  493. 

In  Williams  v.  Natural  Bridge  Plank  Road  Co.,  21  Missouri  R.  580,  it  is  held, 
that  the  grant  of  the  right  of  locating  a  plank-road  upon  a  county  road,  does 
not  exclude  the  idea  that  the  owner  of  the  soil  over  which  the  road  passes 
should  have  compensation  for  any  injury  he  may  sustain  by  converting  a  county 
road  into  a  plank-road.  This  case  is  put,  by  the  court,  upon  the  ground,  that 
the  plank-road  is  an  additional  burden  upon  the  soil,  and  that  for  this  the  land- 
owner is  as  much  entitled  to  compensation  as  if  his  land  had  originally  been 
taken  for  the  purpose  of  the  plank-road,  and  that  to  deny  all  redress  in  such 
case  is  a  virtual  violation  of  that  article  of  the  constitution  giving  compensation 
to  the  owner  of  property  taken  for  public  use. 

This  is  undoubtedly  the  rule  of  the  English  law,  and  of  reason  and  justice, 

and  we  should  rejoice  to  see  it  prevail  more  extensively  in  this  country.      The 

American  courts  seem  to  have  been  sometimes  led  astray  upon  this  subject  by 

the  fallacy,  that  a  railway  is  merely  an  improved  highway,  which  for  many  pur- 

*159 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  301 

could  *  never  be  done  understandingly,  unless  the  use  to  which  it 
were  to  be  put  were  known  to  the  assessors.     And  it  is  obvious, 

poses  it  is,  but  not  for  all,  any  more  than  a  canal.     See  also  Railroad,  ex  parte, 
2  Rich.  434. 

And  the  New  York  statute,  giving  railways  the  right  to  pass  upon,  or  over 
turnpikes,  plank-roads,  rivers,  &c,  by  restoring  such  ways,  rivers,  &c,  so  as  not 
unnecessarily  to  have  impaired  their  usefulness,  was  construed  not  to  preclude 
a  plank-road  from  recovering  of  the  railway  all  damages  sustained  by  them  in 
a  common  action  for  damages,  under  the  code,  the  company  having  entered 
upon  the  plank-road  without  causing  damages  to  be  assessed  under  the  statute. 
Ellicottville  Plank-Road  v.  Buffalo,  &c.  Railw.,  20  Barb.  644.  As  the  New  York 
Court  of  Appeals  have  changed  the  rule  upon  this  subject,  in  that  state,  since 
the  body  of  this  work  was  through  the  press,  in  the  former  edition,  and  only  a 
note  of  the  case  was  inserted  at  the  close  of  that  edition,  we  deem  it  proper 
here  to  present  the  opinion  at  length.  Williams  v.  New  York  Central  Railw., 
1G  Smith  (N.  Y.  Ct.  of  App.),  97.  The  point  decided  is,  that  the  dedication  of 
land  to  the  use  of  the  public  as  a  highway  does  not  authorize  it  being  taken 
by  a  railway  company  for  their  track,  without  compensation  to  the  owner  of  the 
fee,  although  done  by  the  consent  of  the  legislature,  and  of  the  municipal  au- 
thorities. 

Selden,  J.  —  "  This  is  a  suit  in  equity,  the  object  of  which  is  to  obtain  a  per- 
petual injunction,  restraining  the  defendants  from  continuing  to  use  and  occupy 
with  their  railway  a  portion  of  a  certain  highway  or  street  in  the  village  of 
Syracuse,  known  as  Washington  street,  and  to  recover  damages  for  past  occu- 
pation. 

"  Washington  street  was  gratuitously  dedicated  to  the  use  of  the  public  by 
the  plaintiff  and  others,  through  whose  land  it  was  laid,  and  the  Utica  and  Sy- 
racuse Railroad  Company,  to  the  rights  and  liabilities  of  which  the  defendants 
have  succeeded,  constructed  their  railway  upon  it  without  making  any  compen- 
sation to  the  plaintiff,  and  without  his  consent.  At  the  time  the  track  was  laid, 
the  plaintiff  was  the  owner  of  a  large  number  of  lots  fronting  upon  the  street, 
a  portion  of  which  he  has  since  sold,  with  a  reservation  of  his  claim  against  the 
railway  company  for  damages,  and  a  portion  of  which  he  still  owns.  The  dam- 
ages which  have  accrued  both  upon  the  sold  and  unsold  portions  of  the  premi- 
ses are  claimed  in  this  suit. 

"  The  defendants,  in  justification  of  their  occupation  of  the  street,  show  that 
the  charter  of  the  Utica  and  Syracuse  Railroad,  Session  Laws  of  1836,  p.  819, 
§  11,  declares  that  their  road  might  '  intersect '  and  be  built  upon  any  highway, 
and  that  this  right  is  confirmed  by  the  general  railway  act  of  1850. 

"  They  also  show  the  express  consent  of  the  municipal  authority  of  the  city  of 
Syracuse  to  such  occupation.  The  principal  question,  therefore,  and  the  only 
one  which  I  deem  it  necessary  to  consider,  is,  whether  the  state  and  municipal 
authorities  combined  could  confer  upon  the  railway  company  the  right  to  con- 
struct their  road  upon  this  street  without  obtaining  the  consent  of,  or  making 
compensation  to,  the  plaintiff. 

*160 


302  EMINENT    DOMAIN.  §  76. 

that  it  would  ordinarily  be  attended  with  far  more  damage  to 
the  remaining  land  to  have  a  railway  than  a  common  highway 
laid  across  it. 

"  If  the  railway  encroaches  in  any  degree  upon  the  plaintiff's  proprietary 
rights,  then  it  is  clear  that  the  constitutional  inhibition,  which  forbids  the  taking 
of  private  property  for  public  use  "without  just  compensation,"  applies  to  the 
case. 

"It  is  conceded  that,  by  the  dedication,  the  public  acquired  no  more  than 
the  ordinary  easement,  or  a  right  to  use  the  premises  as  a  highway,  and  that 
the  plaintiff  continues  the  owner  in  fee  in  respect  to  the  unsold  lots  to  the 
centre  of  the  street,  subject  only  to  this  easement.  But  it  is  contended  that 
the  taking  and  use  of  the  street  by  the  railway  company  does  not  encroach 
upon  the  reserved  rights  of  the  plaintiff,  because  the  use  of  a  street  for  the 
purposes  of  a  railway  is  only  "  one  of  the  modes  of  enjoying  the  public  ease- 
ment." .... 

[After  examining  various  cases,  which,  the  learned  judge  said,  "  may  be  con- 
sidered as  settling  that  a  railway  in  a  populous  town  is  not  a  nuisance  per  se, 
and  that  when  the  railway  company  has  acquired  the  title  to  the  land  upon 
which  its  road  is  located,  such  company  being  in  the  exercise  of  a  lawful  right, 
is  not  liable,  unless  guilty  of  some  misconduct  or  negligence,  for  any  consequen- 
tial injuries  which  may  result  to  others  from  the  operation  and  use  of  its  road  ; 
but  they  decide  nothing  whatever  in  regard  to  the  question  to  be  considered  in 
this  case,"  —  he  proceeded:]  "  There  is  also  another  class  of  cases  in  which,  al- 
though the  injury  complained  of  is  to  the  corporeal  rights  of  the  plaintiff,  yet, 
being  merely  consequential,  and  no  direct  trespass  or  unauthorized  intrusion 
upon  the  plaintiff's  property  being  alleged,  the  question  under  consideration 
here  could  not  arise.  Such  are  the  cases  of  Fletcher  v.  The  Auburn  and  Syra- 
cuse Railroad  Co.,  25  Wend.  464,  and  Chapman  v.  Albany  and  Schenectady 
Railroad  Co.,  10  Barb.  360."  In  these  and  the  like  cases,  the  title  of  the  com- 
pany to  the  ground  on  which  its  road  is  built,  is  not  disputed.  It  is  unnecessary, 
therefore,  to  notice  them  further  here. 

"  We  come  then  to  the  consideration  of  the  cases  which  do  bear,  with  more  or 
less  weight,  upon  the  question  to  be  decided,  and  upon  which,  so  far  as  author- 
ity is  concerned,  its  decision  must  mainly  depend.  The  first  among  these  cases, 
in  the  order  of  time  as  well  as  of  importance,  is  that  of  The  Presbyterian  Soci- 
ety of  Waterloo  v.  The  Auburn  and  Rochester  Railroad  Co.,  3  Hill,  56  7.  The 
declaration  was  in  trespass  for  entering  upon  the  plaintiff's  premises,  digging  up 
the  soil,  and  constructing  their  railway  track  vipon  it.  The  defence  was,  that 
the  locus  in  quo  was  a  public  highway,  and  that  the  charter  Of  the  company  ex- 
pressly authorized  it  to  construct  its  road  upon  and  across  any  highway.  The 
point,  therefore,  was  presented  in  the  most  direct  manner  possible,  and  the  de- 
fence most  emphatically  overruled.  The  language  of  Chief  Justice  JVelson  is 
most  pertinent  and  forcible.  He  says  :  '  But  the  plaintiffs  were  not  divested  of 
the  fee  of  the  land  by  the  laying  out  of  a  highway ;  nor  did  the  public  thus  ac- 
quire any  greater  interest  therein  than  a  right  of  way,  with  the  powers  and  privi- 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  303 

*  4.  If  the  rule  of  estimating  damages,  according  to  the  money 
value  of  the  land  taken,  were  adopted,  there  would  be  more 

leges  incident  to  that  right,  such  as  digging  the  soil  and  using  the  timber  and 
other  materials  found  within  the  limits  of  the  road  in  a  reasonable  manner,  for 
the  purpose  of  making  and  repairing  the  same,  subject  to  this  easement,  and 
this  only.  The  rights  and  interests  of  the  owners  of  the  fee  remained  unim- 
paired. 

"  '  It  is  quite  clear,  therefore,  even  if  the  true  construction  of  the  eleventh  sec- 
tion accords  with  the  view  taken  by  the  counsel  for  the  defendants,  that  the  leg- 
islature had  no'power  to  authorize  the  company  to  enter  upon  and  appropriate 
the  land  in  question  for  purposes  other  than  those  to  which  it  had  been  origin- 
ally dedicated  in  pursuance  of  the  highway  act,  without  first  providing  a  just 
compensation  therefor.' 

"  It  was  argued  in  that  case,  as  in  this,  that  using  the  road  for  a  railway  was 
only  a  different  mode  of  exercising  the  right  which  had  been  acquired  by  the 
people  ;  that  the  use  was  virtually  the  same,  that  of  accommodating  the  travel- 
ling public.  But  the  argument  met  with  no  favor  from  the  court.  Judge  Nel- 
son says  :  '  It  was  said  on  the  argument,  that  the  highway  is  only  used  by  the 
defendant  for  the  purposes  originally  designed,  —  the  accommodation  of  the  pub- 
lic, and  for  this  compensation  has  already  been  made.  This  argument  ini<drt 
have  been  used  with  about  the  same  force  in  the  case  of  Sir  John  Lade  v.  Shep- 
herd, 2  Strange,  1004.' 

"  He  adds,  on  this  subject :  '  The  claim  set  up  (by  the  defendant)  is  an  ease- 
ment, not  a  right  of  passage  to  the  public,  but  to  the  company,  who  have  the 
exclusive  privilege  of  using  the  track  of  the  road  in  their  own  peculiar  manner. 
The  public  may  travel  with  them  over  the  track,  if  they  choose  to  ride  in  their 
cars.' 

"  This  case,  which  was  decided  by  our  late  Supreme  Court,  upon  full  considera- 
tion, and  in  so  emphatic  a  manner,  ought  to  be  conclusive,  unless  it  appears 
upon  principle  to  be  erroneous 

"  It  will  not  be  seriously  and  cannot  be  successfully  contended,  either  that 
the  dedication  of  land  for  a  highway  gives  to  the  public  an  unlimited  use, 
or  that  the  legislature  have  the  power  to  encroach  upon  the  reserved  rights 
of  the  owners,  by  materially  enlarging  or  changing  the  nature  of  the  public 
easement. 

"  The  only  plausible  ground  which  can  be  taken  is  that  which  was  assumed  in 
the  case  of  The  Presbyterian  Society  in  Waterloo  v.  The  Auburn  and  Roches- 
ter Railroad  Co.,  supra,  and  which  has  also  been  assumed  here,  namely,  that  to 
convert  a  highway  into  a  railway  track  is  no  material  change  in  or  enlargement 
of  that  to  which  it  was  originally  dedicated ;  that  the  construction  of  a  railway 
along  a  highway  is  simply  one  of  the  modes  of  accomplishing  the  object  of  the 
original  dedication,  viz.,  that  of  creating  a  thoroughfare  and  passage-way  for 
the  public ;  in  short,  that  the  railway  is  a  species  of  highway,  and  that  the  two 
uses  are  substantially  identical. 

"  But  is  this  assumption  just  ?     Are  the  two  uses  the  same  ?     If  the  only  dif- 

*  161 


304  EMINENT   DOMAIN.  §  76. 

reason  in  saying  the  public  would  thereby  acquire  the  right  to 
use  it  for  any  purposes  of  a  road,  which  any  future  improvement 

ference  consisted  in  the  introduction  of  a  new  motive  power,  it  would  not  be 
material.  But  is  there  no  distinction  between  the  common  rights  of  every  man 
to  use  upon  the  road  a  conveyance  of  his  own  at  will,  and  the  right  of  a  corpo- 
ration to  use  its  conveyances  to  the  exclusion  of  all  others,  —  between  the  right 
of  a  man  to  travel  in  his  own  carriage  without  pay,  and  the  right  to  travel  in 
the  car  of  a  railway  company  on  paying  their  price  ? 

"  It  may  be  said  that  the  use  of  the  road  as  a  common  highway  is  not  sub- 
verted ;  that  a  man  may  still  drive  his  own  carriage  upon  it.  Without  pausing 
to  notice  the  fallacy  of  this  argument,  and  the  impracticability  of  the  enjoyment 
of  such  a  right  when  railway  trains  are  passing  and  repassing  every  half  hour, 
let  us  look  at  the  subject  in  another  point  of  view.  The  right  of  the  public  in 
a  highway  is  an  easement,  and  one  that  is  vested  in  the  whole  public.  Is  not 
the  right  of  a  railway  company,  if  it  has  a  right  to  construct  its  track  upon  the 
road,  also  an  easement  ?  This  cannot  be  denied ;  nor  that  the  latter  easement 
is  enjoyed,  not  by  the  public  at  large,  but  by  a  corporation ;  because  it  will  not 
be  pretended  that  every  man  would  have  a  right  to  go  and  lay  down  his  tim- 
bers and  his  iron  rails,  and  make  a  railway  upon  a  highway.  These,  then,  are 
two  easements;  one  vested  in  the  public,  the  other  in  the  railway  company. 
These  easements  are  property,  and  that  of  the  railway  company  is  valuable. 
How  was  it  acquired  ?     It  has  cost  the  company  nothing. 

"  The  theory  must  be  that  it  is  carved  out  and  is  a  part  of  the  public  ease- 
ment, and  is,  therefore,  the  gift  of  the  public.  This  would  do  if  it  was  given 
solely  at  the  expense  of  the  public.  But  it  is  manifest  that  it  is  at  the  joint  ex- 
pense of  the  public  and  the  owner  of  the  fee.  Ought  not  the  latter,  then,  to 
have  been  consulted  V 

"  But  it  is  unnecessary  to  refine  upon  this  case.  Any  one  can  see,  that  to 
convert  a  common  highway,  running  over  a  man's  land,  into  a  railway,  is  to  im- 
pose an  additional  burden  upon  the  land,  and  greatly  to  impair  its  value.  As 
no  compensation  has,  in  this  case,  been  made  to  the  owner,  his  consent  must  in 
some  way  be  shown. 

"  The  argument  is,  that  as  he  has  consented  to  the  laying  out  of  a  highway 
upon  his  land,  ergo,  he  has  consented  to  the  building  of  a  railway  upon  it,  al- 
though one  of  these  benefits  his  land,  renders  access  to  it  easy,  and  enhances  its 
price,  while  the  other  makes  access  to  it  both  difficult  and  dangerous,  and  ren- 
ders it  comparatively  valueless.  Were  the  transaction  between  two  individuals, 
every  one  would  see  at  once  the  injustice  of  the  conclusion  attempted  to  be 
drawn.  It  is  the  public  interest,  supposed  to  be  involved,  which  begets  the  dif- 
ficulty; and  it  is  just  for  this  reason  that  the  constitution  interferes  for  the  pro- 
tection of  individual  rights,  and  provides  that  private  property  shall  not  be 
taken  for  public  use  without  compensation ;  a  provision  no  less  necessary  than 
just,  and  one  which  it  is  the  duty  of  courts  to  see  honestly  and  fairly  en- 
forced. 

"  The  case  stated  by  the  learned  judge  who  delivered  a  dissenting  opinion  in 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  305 

might  suggest.  And  this  is  the  view  which  seems  very  exten- 
sively to  prevail  in  this  country.     It  was  long  since  settled  that 

the  Supreme  Court,  is  a  striking  illustration  of  the  injustice  that  would  fre- 
quently be  done  under  the  rule  contended  for  by  the  defendants. 

"  A  street  was  laid  out  through  a  man's  land,  and  he  was  assessed  several 
hundred  dollars  for  benefits,  in  addition  to  the  land  taken,  and  before  the  street 
was  opened  it  was  taken  by  a  railway  company,  and  converted  into  the  track  of 
their  road.  The  owner  lost  his  land,  had  to  pay  several  hundred  dollars,  and 
had  the  annoyance  of  the  railway  besides,  while  the  railway  company  got  the 
road  for  nothing. 

"  The  case  of  Inhabitants  of  Springfield  v.  Connecticut  River  Railroad  Co.,  4 
Cush.  G3,  shows  what  the  Supreme  Court  of  Massachusetts  thought  of  the  argu- 
ment that  the  uses  are  the  same.  It  was  insisted  there,  on  the  part  of  the  defend- 
ants, that  the  power  conferred  upon  them  by  the  legislature  to  build  their  road 
between  certain  termini,  gave  them,  by  necessary  implication,  the  right  to  build 
their  track  upon  any  intervening  highway.  But  Chief  Justice  Shaw,  in  his 
reply  to  this  argument,  says :  '  The  two  uses  are  almost,  if  not  wholly,  incon- 
sistent with  each  other,  so  that  taking  the  highway  for  a  railway  will  nearly 
supersede  the  former  one  to  which  it  had  been  legally  appropriated.  The 
whole  course  of  legislation  on  the  subject  of  railways  is  opposed  to  such  a  con- 
struction.' 

"  I  concur  with  the  learned  chief  justice,  and  have  no  hesitation  in  coming  to 
the  conclusion,  that  the  dedication  of  land  to  the  use  of  the  public  as  a  highway 
is  not  a  dedication  of  it  to  the  use  of  a  railway  company  ;  that  the  two  uses  are 
essentially  different,  and  that,  consequently,  a  railway  cannot  be  built  upon  a 
highway  without  compensation  to  the  owners  of  the  fee.  The  legislative  pro- 
visions on  the  subject  were  probably  intended,  as  was  intimated  in  The  Presby- 
terian Society  of  Waterloo  v.  The  Auburn  and  Rochester  Railroad  Co.,  supi-a, 
to  confer  the  right  so  far  only  as  the  public  easement  is  concerned,  leaving  the 
companies  to  deal  with  the  private  rights  of  individuals  in  the  ordinary  mode. 
If,  however,  more  was  intended,  the  provisions  are  clearly  in  conflict  with  the 
constitution,  and  cannot  be  sustained. 

"It  follows  that  the  defendants,  in  constructing  their  road  upon  Washington 
Street,  without  the  consent  of  the  plaintiff,  and  without  any  appraisal  of  his 
damages,  or  compensation  to  him  in  any  form,  were  guilty  of  an  unwarrantable 
intrusion  and  trespass  upon  his  property,  and  that  he  is  entitled  to  relief. 

"  Although  he  had  a  remedy  at  law  for  the  trespass,  yet  as  the  trespass  was  of 
a  continuous  nature,  he  had  a  right  to  come  into  a  court  of  equity,  and  to  invoke 
its  restraining  power  to  prevent  a  multiplicity  of  suits,  and  can,  of  course,  re- 
cover his  damages  as  incidental  to  this  equitable  relief.  There  may  be  doubt  as 
to  his  right  to  recover  in  this  suit  the  damages  upon  the  lots  which  have  been 
sold,  because,  as  to  those  lots,  there  was  no  occasion  to  ask  any  equitable  relief, 
and  to  permit  the  damages  to  be  assessed  in  this  suit  in  effect  deprives  the  de- 
fendants of  the  right  to  have  them  assessed  by  a  jury.  But  as  this  question  has 
not  been  raised,  it  is  unnecessary  to  consider  it." 

VOL.  I.  20 


306  EMINENT   DOMAIN.  §  76. 

the  land-owner  was  not  entitled  to  any  additional  damage,  by- 
reason  of  any  alteration  in  the  construction  of  the  highway.2  Or 
in  applying  it  to  the  use  of  a  turnpike  road  where  toll  was  paid, 
this  being  but  a  different  mode  of  supporting  the  highway,  of 
which  the  land-owner  had  no  just  cause  of  complaint,  since  it 
did  not  materially  alter  the  use  of  the  land.3  And  the  same 
rule  has  now  pretty  extensively  been  extended  to  improvements 
in  erecting  railways  along  the  streets  and  highways.4  These 
questions  depend  much  upon  the  terms  of  the  charter  of  the 
railway  company. 

5.  And  as  it  is  confessedly  competent  for  the  legislature  to 
require  railways,  in  laying  their  track  along  the  highways,  to 
make  compensation  to  the  adjoining  land-owners,  for  any  in- 
creased detriment,  or  to  be  liable  for  all  consequential  damage,5 
and  as  it  is  assuredly  just  and  equitable  to  do  so,  it  seems  de- 
sirable it  should  be  done.     And  in  those  states  and  countries 

It  has  been  held  that  the  laying  out  and  operating  a  horse  railway  in  the 
streets  of  a  city  is  not  an  additional  servitude  upon  the  soil  for  which  the  owner 
is  entitled  to  compensation.  Brooklyn  Central  &  Ja.  Railw.  v.  Brooklyn  City 
Railw.,  33  Barb.  420.  And  if  one  company  lay  their  track  across  the  track  of 
another,  they  are  entitled  to  no  compensation.     lb. 

"  Zimmerman  v.  The  Union  Canal  Co.,  1  Watts  &  Serg.  346  ;  Mayor  v.  Ran- 
dolph, 4  Watts  &  Serg.  514  ;  Gov.  &  Co.  of  Plate  Manufacturers  v.  Meredith,  4 
Term  R.  790  ;  Sutton  v.  Clark,  6  Taunton,  29  ;  Boulton  v.  Crowther,  2  B.  & 
C.  703  ;  The  King  v.  Pagham,  8  B.  &  C.  355  ;  Henry  v.  The  Alleghany  &  Pitts- 
burg Bridge  Co.,  8  Watts  &  Serg.  86  ;  Shrunk  v.  Schuylkill  Nav.  Co.,  14  S. 
&  R.  71  ;  Commonwealth  v.  Fisher,  1  Penn.  R.  46  7  ;  Hatch  v.  Vermont  Cen- 
tral Railw.,  25  Vt.  R.  49  ;  Taylor  v.  City  of  St.  Louis,  14  Misso.  R.  20  ;  Richard- 
son v.  Vermont  Central  Railw.,  25  Vt.  R.  465  ;  Callender  v.  Marsh,  1  Pick. 
418  :  Rounds  v.  Mumford,  2  Rhode  Island  R.  154  ;  O'Connor  v.  Pittsburgh, 
18  Penn.  St.  187  ;  Plum  v.  Morris  Canal  &  Bank.  Co.  and  the  City  of  Newark, 
2  Stockton's  Ch.  256. 

3  Wright  v.  Coster,  3  Dutcher,  76. 

4  Plant  v.  Long  Island  Railw.  Co.,  10  Barb.  26.  But  see  Mifflin  v.  Harris- 
burg,  Portsmouth,  M.  &  L.  Railw.  Co.,  4  Harris  (Penn.)  182.  In  this  case 
the  act  required  payment  of  damage  to  all  who  were  injured  by  converting  a 
turnpike  into  a  railway,  and  it  was  held  a  receipt  in  full  to  the  turnpike  com- 
pany did  not  bar  the  claim  of  an  adjoining  land-owner  for  additional  damages. 
But  the  levelling  of  a  street,  preparatory  to  laying  the  structure  of  a  railway,  is 
not  an  obstruction.  McLaughlin  v.  Charlotte  and  S.  C.  Railw.,  5  Rich.  583  ; 
Benedict  v.  Coit,  3  Barb.  459. 

5  Bradley  v.  N.  Y.  &  N.  H.  Railw.  Co.,  21  Conn.  R.  294. 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  307 

where  such  enterprises  have  become  so  far  matured  as  to  have 
assumed  the  form  of  a  settled  system,  it  more  commonly  is  done. 
And  where  it  is.  not,  it  may  be  regarded  as  the  result  of  over- 
sight in  the  legislature.  It  was  held  that  a  railway  is  liable  to 
pay  damages  for  crossing  a  turnpike  company's  road,  notwith- 
standing the  legislature  gave  the  right.0 

*6.  Injunctions  in  equity  have  been  denied,  when  applied  for, 
to  restrain  railways  from  occupying  the  streets  of  cities  and 
towns  with  their  track,7  by  consent  of  the  municipal  authority. 

6  Seneca  Railw.  Co.  v.  Aub.  &  Roch.  Railw.  Co.,  5  Hill,  170.  And  the 
amount  of  damage  is  immaterial.  The  maxim,  de  minimis,  does  not  apply  to 
cases  of  plain  violation  of  right.     Id.   Cowen,  J. 

7  Hamilton  v.  New  York  &  Harlem  Railw.,  9  Paige,  171  ;  Hentz  v.  Long 
Is.  Railw.,  13  Barb.  646;  Chapman  v.  Albany  &  Sch.  Railw.,  10  Barb.  360; 
Lexington  &  Ohio  Railw.  v.  Applegate,  8  Dana,  289  ;  Drake  v.  Hudson  River 
Railw.,  7  Barb.  508  ;  Wetmore  v.  Story,  22  Barb.  414  ;  Milhau  v.  Sharp,  15 
Barb.  193.  But  where  the  railway  is  constructed  without  the  legal  permission  of 
the  municipal  authorities  or  the  legislature,  along  the  streets  of  a  populous  city, 
it  becomes -a  nuisance,  and  courts  of  equity  will  prohibit  its  continuance,  at  the  suit 
of  individuals  who  are  tax-payers  and  property  owners  on  the  streets,  through 
which  the  rails  are  laid.  In  a  late  case  in  New  Jersey,  Morris  &  Essex  Railw. 
v.  City  of  Newark,  2  Stockton's  Ch.  352,  the  right  of  a  railway  company  to 
occupy  the  streets  of  a  city  seems  to  have  been  examined  with  considerable 
care  by  the  chancellor,  but  the  cases  upon  the  subject  are  not  examined  very 
extensively,  and  reliance  is  there  placed  upon  the  case  of  Williams  v.  The  New 
York  Central  Railw.,  which  has  since  been  reversed  in  the  Court  of  Appeals, 
ante,  n.  1 . 

There  is  one  distinction  here  adverted  to,  that  is  not  named  in  other  cases,  so 
far  as  we  have  noticed,  that  so  long  as  the  highway  or  street  continues  to  be 
used  as  such,  the  concurrent  use  of  it  by  a  railway  company  for  their  track,  by 
consent  of  the  legislature  and  the  municipal  authorities,  does  not  entitle  the 
owner  of  the  fee  to  additional  compensation.  But  if  it  is  appropriated  exclu- 
sively to  the  use  of  the  railway,  the  owner  is  then,  by  constitutional  provision, 
entitled  to  compensation,  the  discontinuance  of  the  highway  causing  a  reverter 
to  the  owner  of  the  fee.  This  qualification  takes  away  the  most  offensive  fea- 
ture of  what  is  claimed,  in  some  of  the  cases,  the  right,  in  the  legislature  and  the 
municipal  authorities,  to  transmute  a  common  highway  or  street  into  a  public 
railway,  as  one  of  those  improvements  in  the  mode  of  intercommunication  which 
the  progress  of  events  had  brought  about,  and  which  must  be  regarded  as  fairly 
within  the  contemplation  of  the  parties  at  the  time  of  the  original  taking. 

But,  in  the  present  case,  there  being  no  necessity  for  the  use  of  the  street  in 
question  by  the  railway,  but  merely  a  convenience,  and  no  express  consent  of 
the  municipal  authorities  for  such  use,  it  was  held  that  no  right  to  such  use  could 

*  162 


308  EMINENT   DOMAIN.  §  76. 

7.  But  in  a  recent  and  well-considered  case,8  it  was  held,  that 
where  a  railway  company,  in  carrying  their  road  through  the 
streets  of  the  city  of  New  Haven,  found  it  necessary  to  carry 
one  of  the  streets  over  the  railway,  upon  a  high  bridge,  with 
large  embankments  at  each  end,  the  plaintiff  owning  the  land 
upon  both  sides  of  the  street,  and  no  compensation  being  assessed 
to  him,  he  might  recover  of  the  company  in  an  action  of  trespass, 
for  any  appreciable  incidental  damages,  occasioned  by  thus  con- 
structing their  road,  and  the  consecpiient  alteration  of  the  high- 
way or  street.  And  as  the  company,  in  thus  constructing  their 
road,  acted  under  the  authority  of  the  legislature,  they  were, 
primd  facie,  not  to  be  regarded  as  trespassers,  but  that,  where 
they  caused  any  appreciable  damage  to  the  land-owners  along 
the  line  of  the  road,  they  were  liable  in  this  form  of  action. 
The   court  in   this   case,  *  Hinman,  J.,  assumed   the    distinct 

be  implied,  from  the  grant  of  their  charter,  between  certain  termini,  which  might 
be  obtained  by  a  route  less  injurious  to  the  public,  and  that  the  consent  of  the 
municipal  authorities  was  not  to  be  inferred  from  their  not  interfering  until  the 
track  had  been  laid  and  used  for  several  years  and  large  sums  of  money  thus 
invested,  and  important  interests  accrued,  and  the  injunction  restraining  the  au- 
thorities from  removing  the  track  was  dissolved.  The  extent  to  which  a  railway 
company  must  obstruct  the  highway,  at  an  intersection  of  the  two,  to  create  an 
actionable  impediment  to  the  public  travel,  is  extensively  considered  in  the  case 
of  Great  Western  Railw.  Co.  v.  Decatur,  33  111.  R.  381.  It  was  here  decided, 
that  twelve  feet  of  the  highway  remaining  unobstructed,  so  that  a  steady  team 
mi"-ht  have  passed  in  safety,  is  not  enough  to  exonerate  the  railway  company 
from  a  charge  of  obstructing  the  passage  of  the  highway. 

8  Nicholson  v.  New  York  &  New  Haven  Railw.,  22  Conn.  R  74.  If  there  is 
any  departure  from  general  principles,  in  this  case,  it  is  in  holding  the  railway 
company  justified  in  making  alterations  in  highways,  which  cause  no  appreciable 
injury  to  the  land-owners,  and  this  certainly  commends  itself  to  our  sense  of 
reason  and  justice.  It  may  be  somewhat  questionable,  perhaps,  whether  the 
charge  of  the  judge,  who  tried  the  case  at  the  circuit,  was  not  based  upon  the 
technical  rules  applicable  to  the  case,  namely,  that  the  company  were,  at  all 
events,  liable  for  nominal  damages,  and  for  all  actual  damages  in  addition.  But 
where  a  railway  company,  by  consent  of  the  mayor  and  aldermen  of  a  city,  under 
the  Revised  Statutes,  raise  a  street  to  enable  them  to  carry  their  road  under  it, 
they  become  primarily  liable  to  the  adjoining  land-owners  for  any  damage  to 
their  estates  thereby.  And  it  will  not  affect  the  liability  of  the  company,  that 
the  city  took  of  them  a  bond  of  indemnity,  and  appointed  a  superintendent  to 
take  care  of  the  public  interests  in  the  execution  of  the  work.  Gardiner  v.  Bos- 
ton &  Worcester  Railw.,  9  Cush.  1. 
*  163 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  309 

ground,  that  the  railway,  by  laying  their  track  upon  the  plain- 
tiff's land,  which  was  before  subject  to  the  servitude  of  the  high- 
way, or  street,  would  become  liable  "  for  such  entry  "  upon  the 
land.  "  In  such  case,"  says  the  learned  judge,  "  the  subjecting 
the  plaintiff's  property  to  an  additional  servitude,  is  an  infringe- 
ment of  his  right  to  it,  and  is,  therefore,  an  injury  and  damage 
to  him.  It  would  be  a  taking  of  the  property  of  the  plaintiff, 
without  first  making  compensation."  And  the  same  court,  in  a 
later  case,9  held  that  the  location  of  a  railway  upon  a  public 
highway  is  the  imposition  of  a  new  servitude  upon  the  land, 
and  the  owner  of  the  fee  is  entitled  to  compensation  for  the  dam- 
age caused  thereby.  And  this  includes  all  incidental  damage  to 
land  adjoining,  and  which  belongs  to  the  same  proprietor. 

In  a  late  case  in  Pennsylvania,10  it  is  held  that  the  legislature 
may  authorize  the  construction  of  a  railway  on  a  street,  or  pub- 
lic highway,  and  the  inconvenience  thereby  incurred  by  the  citi- 
zens must  be  borne  for  the  sake  of  the  public  good.  But  where 
this  is  claimed  by  construction  and  inference,  all  doubts  are  to 
be  solved  against  the  company. 

And  where,  by  the  act  of  incorporation  of  a  municipality,  it 
was  provided  that  the  "  streets,  lanes,  and  alleys  thereof"  should 
forever  be  and  remain  public  highways,  it  was  held  that  the  mu- 
nicipal authorities  could  not  authorize  the  construction  of  a  rail- 
way thereon.10 

But  where  the  state  conveys  to  a  city  the  title  of  a  common, 
reserved  in  the  grant  of  the  township  for  a  "  common  pasture," 
subject  to  the  easement  of  the  lot  holders,  of  common  of  pastur- 
age, it  was  held  that  the  city  might  lawfully  grant  a  portion  of 
the  same  to  a  railway,  for  the  purpose  of  constructing  their 
road.11 

9  Imlay  v.  The  Union  Branch  Railw.  Co.,  26  Conn.  R.  249. 

10  Commonwealth  v.  Erie  &  Northeast  Railw.,  27  Penn.  St.  339.  See  also 
Alleghany  v.  Ohio  &  Pennsylvania  Railw.,  26  Penn.  St.  355. 

11  Alleghany  v.  Ohio  &  Pennsylvania  Railw.,  26  Penn.  St.  355.  But  the  grant 
of  fifty  feet,  through  such  a  common,  in  a  densely  populated  city,  will  only  con- 
vey the  right  to  the  railway  to  erect  their  road  thereon,  and  to  receive  and  dis- 
charge passengers  and  freight,  and  will  not  give  the  right  to  erect  depots,  car- 
houses,  or  other  structures,  for  the  convenience  or  business  of  the  road  ;  or  to 
permit  their  cars  and  locomotives  to  remain  on  their  track  longer  than  is  neces- 
sary to  receive  and  discharge  freight  and  passengers.     lb. 


310  EMINENT   DOMAIN.  §76. 

8.  Since  the  second  edition  of  this  work,  the  decisions  have 
been  considerably  numerous  in  regard  to  the  right  of  railways 

And  it  might  have  been  regarded  as  the  settled  doctrine  of  the  New  York 
courts,  until  the  case  of  Williamson  v.  N.  Y.  Central  R.,  ante,  n.  1,  that  the 
owher  of  the  fee  of  land  dedicated  to  the  use  of  a  highway  or  street,  and  which 
the  legislature  devote  to  the  use  of  a  railway,  had  no  claim  upon  the  company 
for  compensation,  by  reason  of  the  additional  servitude  thereby  imposed  upon  the 
land.  Corey  v.  Buffalo,  Corning,  &  New  York  Eailw.,  23  Barb.  482 ;  Radcliff 
v.  Mayor  of  Brooklyn,  4  Comst.  195  ;  Gould  v.  Hudson  River  Railw.,  2  Seld. 
522.     But  this  is  now  otherwise. 

And,  so  late  as  January,  1857,  the  subject  is  elaborately  examined  by  Vice- 
Chancellor  Kindersley,  in  Thompson  v.  West  Somerset  Railw.,  29  Law  Times, 
7,  in  relation  to  the  cestuis  que  trust  of  a  pier,  over  which  the  act  of  parliament, 
in  express  terms,  authorized  the  company  to  construct  their  road,  but  which  they 
had  done  without  proceeding  under  the  statutes,  to  appraise  compensation,  and 
the  court  held  them  trespassers,  and  an  injunction  was  granted  until  the  com- 
pany made  compensation. 

And  in  a  recent  case  in  Indiana,  the  subject  is  considered,  and  although  the 
authorities  are  not  much  reviewed,  the  conclusions  of  the  court  conform  so  closely 
to  the  broadest  views  of  reason  and  justice,  that  we  shall  insert  an  extended  note 
of  the  points  decided. 

A  city  ordinance  authorized  the  construction  of  a  railway,  on  either  of  two 
streets,  through  the  corporate  limits,  under  suitable  restrictions  as  to  grade.  It 
was  considered  that  the  ordinance  did  not  authorize  the  company  to  substantially 
alter  the  grade  of  the  street.     It  was  further  : 

Held,  that  besides  the  right  of  way,  which  the  public  have  in  a  street,  there  is 
a  private  right,  which  passes  to  a  purchaser  of  a  lot  upon  the  street,  as  appurte- 
nant to  it,  which  he  holds  by  an  implied  covenant,  that  the  street  in  front  of  his 
lot  shall  forever  be  kept  open,  for  his  enjoyment,  and  for  any  obstruction  thereof, 
to  the  owner's  injury,  he  may  maintain  an  action. 

The  right  which  the  owner  of  a  lot  has  to  the  enjoyment  of  an  adjoining  street 
is  part  of  his  property,  and  can  only  be  taken  for  public  use,  on  just  compensation 
being  made,  pursuant  to  the  constitution.  Tate  v.  Ohio  &  Miss.  Railw.,  7  Porter 
(Ind.),  479. 

And  in  Haynes  v.  Thomas,  Id.  38,  whei*e  the  cases  are  more  fully  examined, 
the  same  general  propositions  are  maintained.  It  is  there  said,  the  right  of  the 
owner  of  a  town  lot,  abutting  upon  a  street,  to  use  the  street,  is  as  much  property 
as  the  lot  itself,  and  the  legislature  has  as  little  power  to  take  away  one  as  the 
other. 

These  general  propositions  are  repeated,  and  somewhat  varied,  in  the  notes  of 
this  case.  And  although  we  think,  upon  principle,  the  right  as  against  a  railway 
company  should  be  placed  upon  the  basis  of  it  being  an  additional  and  more 
oppressive  burden  and  servitude  upon  the  land,  which  entitles  the  land-owner  to 
additional  compensation,  there  can  be,  in  our  judgment,  no  manner  of  question 
of  the  general  soundness  of  the  above  decisions.     And  the  latter  case,  being  that 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  311 

to  occupy  the  streets  and  highways,  without  making  additional 
compensation  to  the  owners  of  the  fee  of  the  lands  across  which 
the  same  are  laid.  The  principles  involved  are  much  the  same 
which  have  been  already  stated  ;  but  it  will  be  important  to  the 
profession  to  know  them  in  detail. 

1.  In  a  somewhat  recent  case12  it  was  decided,  that  the  occu- 
pation of  the  highway  by  the  track  of  a  railway  company,  is  the 
imposition  of  an  additional  servitude,  and  is  the  taking  the  prop- 
erty of  the  owner  of  the  fee  in  the  lands  over  which  the  same  is 
laid,  within  those  constitutional  prohibitions  requiring  compen- 
sation where  private  property  is  taken  for  public  use ;  and  that 
consequently  the  company  can  acquire  no  right  to  such  use,  un- 
der legislative  and  municipal  license,  without  compensation,  and 
that  there  is  no  difference  in  this  respect  between  railways  oper- 
ated by  steam  and  by  other  motive  power.  But  in  another  case 
it  was  held,  that  any  legislative  act  empowering  a  railway  com- 
pany to  occupy  certain  streets  and  avenues  in  the  city  of  New 
York,  should  not  be  construed  as  not  intended  to  give  such  per- 
mission without  compensation.13  In  the  main,  this  case  assumes 
the  opposite  ground  from  that  declared  by  Craig  v.  Rochester 
City  and  Br.  Railway  Co.12  The  question  came  up  for  revision 
in  the  Court  of  Appeals,  in  the  case  of  the  People  v.  Kerr,14 

of  the  voluntary  dedication  of  property,  by  the  owner,  for  the  purposes  of  a 
street  and  highway,  is  very  well  calculated  to  illustrate  the  hardship  and  injustice 
of  wresting  such  use  to  the  purposes  of  a  railway,  so  much  more  burdensome  and 
injurious.  So  that  the  general  current  of  the  American  law  upon  this  subject 
may  now  be  regarded  as  the  same  with  the  English  rule  already  stated. 

Protzman  v.  Ind.  &  Cin.  Railw.,  9  Ind.  R.  46  7;  Evansville  &  C.  Railw.  v. 
Duk,  9  Ind.  R.  433.     See  also  Marquis  of  Salisbury  v.  Great  Northern  Railw., 

5  C.  B.  (N.  S.)  174,  s.  c.  5  Jur.  N.  S.  70. 

12  Craig  m.  Rochester  City  &  Br.  Railw.  Co.,  39  Barb.  494. 

13  People  v.  Kerr,  37  Barb.  357. 

14  27  N.  Y.  R.  188.  This  case  must  be  regarded  as  settling  the  law  in  this 
state,  notwithstanding  some  conflict  in  the  decisions  of  their  different  supreme 
courts.  The  rule  is  thus  laid  down  by  Emott,  J.,  in  the  case  last  cited.  "  It 
must  be  regarded  as  settled,  in  the  jurisprudence  of  this  state,  that  the  appropria- 
tion of  property  to  the  construction  or  use  of  a  railway  for  the  transportation  of 
property,  is  an  application  of  such  property  to  the  use  of  the  public.  The  doc- 
trine applies  to  all  railways,  whether  traversing  the  state  or  the  streets  of  a  city, 
and  of  course  the  motive  power  used  does  not  affect  the  question.  So,  also,  the 
uniform  course  of  decisions  and  legal  proceedings  since  Bloodgood  v.  Mohawk 

6  Hudson  Railw.  (18  Wend.  1),  and  founded  upon  the  principles  there  asserted, 


312  EMINENT    DOMAIN.  §  70. 

where  the  court  maintained  the  proposition  that  the  construction 
of  a  city  railway  upon  the  surface  of  the  streets,  and  without 
change  of  grade,  is  an  appropriation  of  the  land  to  some  extent 
to  public  use,  but  the  court  held  that  the  original  owner  of  the 
fee  of  the  streets  in  the  city  of  New  York  had  no  such  remain- 
ing interest  as  to  justify  any  demand  for  compensation  on  his 
part,  for  reasons  before  stated.15 

2.  The  same  distinction,  as  to  the  right  of  the  owner  of  the 
fee  to  demand  compensation,  between  the  use  of  the  streets  of 
towns  and  cities  for  the  track  of  railways,  and  of  highways  in 
the  country,  is  observed  in  many  of  the  other  states.  Thus  in 
two  cases  in  Iowa  this  distinction  is  maintained.10 

3.  The  question  of  the  location  of  railways  across  or  along 
the  streets  and  highways  of  cities  and  towns,  as  well  as  in  the 
rural  districts,  is  extensively  discussed  in  a  late  case  in  Maine, 
which  came  more  than  once  before  the  courts.17  But  most  of 
the  propositions  here  maintained  are  more  or  less  affected  by 
statutory  provisions.  It  is  here  declared  (which  indeed  is  found 
in  many  other  cases,  and  is  sufficiently  obvious  in  itself)  that 
statutes  regulating  the  operation  of  railways  are  to  be  consid- 
ered as  affecting  only  the  general  police  of  the  state,  and  as  ap- 
plying equally  to  existing  and  future  railways ;  but  even  matters 
of  police  affecting  the  construction  of  railways  cannot  reasonably 
be  construed  as  having  a  retroactive  operation,  so  as  to  require 
a  railway  company  to  undo  and  do  over  again  the  work  of  con- 
struction. 

4.  The  cases18  decided  in  Ohio,  in  regard  to  the  use  of  high- 
ways and  streets  for  the  purpose  of  street  railways,  do  not  appear 
to  be  altogether  decisive  of  the  principle  involved.  It  seems  to 
be  there  regarded,  that  so  far  as  a  street  or  highway  can  be  ap- 
propriated   for   such  use,  without   appreciable  damage  to  the 

is  conclusive  that  it  does  not  affect  the  question  of  public  use  in  such  cases,  that 
the  property  applied  to  it  is  to  be  appropriated  by  a  corporation  or  by  individ- 
uals, and  not  directly  by  the  state  or  the  people,  or  that  the  road  is  not  of  a  char- 
acter to  be  actually  used  by  any  and  every  citizen  with  his  own  vehicle. 

15  Ante,  §  70,  pi.  13. 

16  Milburn  v.  City  of  Cedar  Rapids,  &c,  12  Iowa  R.  246;  Haight  v.  The 
City  of  Keokuk,  &c,  4  Id.  199. 

17  Veazie  v.  Mayo,  45  Me.  R.  560 ;  s.  c.  49,  Id.  156. 

18  Crawford  v.  Delawne,  7  Ohio  St.  459 ;  Cincinnati  &  Spring  Grove  Avenue 
Railw.  Co.  v.  Cumminsville,  14  Ohio  St.  523. 


§  7G.  RIGHT   TO   OCCUPY   HIGHWAY.  313 

owner  of  the  land  adjoining,  that  he  is  not  entitled  to  any  addi- 
tional compensation,  but  that  if,  from  change  of  grade  or  any 
other  cause,  there  is  any  essential  damage  inflicted  upon  the' 
abutters,  by  obstructing  access  to  lands  or  buildings,  or  in  any 
other  respect,  more  than  would  have  resulted  from  the  use  in 
the  ordinary  mode  for  a  highway,  the  owner  of  the  fee  will  be 
entitled  to  demand  additional  compensation. 

5.  But  it  is  obvious  that  the  difficulty,  in  point  of  principle, 
lies  somewhat  deeper.  For  although  the  rule  there  laid  down, 
in  point  of  equity,  may  be  entirely  just  and  reasonable,  it  must 
always  prove  embarrassing  in  practice,  and  compel  an  appraise- 
ment in  each  particular  case,  in  order  to  insure  security.  The 
true  principle  undoubtedly  is,  that  if  the  use  is  substantially  the 
same  as  that  of  an  ordinary  highway,  no  additional  compensa- 
tion can  be  required ;  but  if  the  use  is  new  and  distinct  from 
that  of  an  ordinary  highway,  the  owner  of  the  fee  is  entitled  to 
additional  compensation  in  every  case,  without  reference  to 
special  damages ;  so  that  the  question  turns  upon  the  point 
whether  the  use  of  a  street  or  highway  for  the  support  of  a  rail- 
way track  is  using  it  for  a  highway  only.  As  such  use  of  the 
street  for  street  railways  is  of  necessity  solely  under  municipal 
control,  and  is  a  use  to  which  the  municipal  authorities  might 
themselves  devote  the  street  by  constructing  the  tracks  at  their 
own  expense,  allowing  all  travellers  to  use  them  with  every 
species  of  carriage,  it  seemed  natural  to  conclude  that  it  could 
not  be  regarded  as  an  additional  servitude  $  but  the  current  of 
authority  seems  to  be  setting  in  the  opposite  direction. 

6.  The  present  inclination  seems  to  be  to  make  no  distinction 
between  the  use  of  streets  by  steam  and  street  railways,  and  to 
require  compensation  in  both  cases  alike.19 

7.  There  are  some  few  cases  in  different  states  which  still  ad- 
here to  the  doctrine  that  the  laying  of  a  railway  track  for  the 
passage  of  street  railways,  at  the  ordinary  grade  of  the  highway, 

19  Ford  v.  Chicago  and  North  Western  Railw.  Co.,  14  Wise.  R.  609  ;  City  of 
Janesville  v.  Milw.  &  Miss.  Railw.  Co.,  7  Id.  484  ;  Pomeroy  v.  Chi.  &  Milw.  Railw. 
Co.,  16  Id.  640  ;  Warren  v.  State,  5  Dutcher,  393  ;  Veazie  v.  Penobscot  Railw., 
49  Me.  R.  119.  The  same  principle  is  maintained  in  Brown  v.  Duplessis,  14 
Louis.  Ann.  842.  But  by  statute  in  this  state  the  cities  may  sell  the  use  of  the 
streets  for  city  passenger  railway  purposes. 


314  EMINENT   DOMAIN.  §  76. 

is  not  an  appropriation  of  any  estate  in  the  land  to  public  use 
beyond  that  already  appropriated  by  devoting  the  land  to  the  use 
•of  a  highway  or  street.20  And  there  is  an  elaborate  opinion  of 
Mr.  Justice  Ellsivorth,  of  the  Connecticut  Superior  Court,21 
where  the  same  views  are  maintained,  and,  as  it  seems  to  us, 
with  more  plausibility  than  any  case  we  have  found  in  the  oppo- 
site direction. 

8.  The  explanation  of  the  singular  vacillation  of  the  courts 
upon  the  subject  of  railways  being  located  on  the  highways,  and 
whether  the  owner  of  the  fee  was  thereby  entitled  to  additional 
compensation,  seems  to  arise  in  the  following  manner.  At  the 
first  it  was  so  common  to  designate  steam  railways  as  only  an 
improved  highway,  that  the  courts,  almost  universally  in  this 
country,  held  the  owner  of  the  fee  entitled  to  no  additional  com- 
pensation by  reason  of  such  railways  being  laid  upon  the  high- 
way, either  across  or  along  their  route.  But  this  view,  upon 
more  careful  consideration,  being  found  untenable,  the  retroces- 
sion of  the  courts  from  their  former  false  assumption  naturally 
gave  them  an  unnatural  impulse  in  the  opposite  direction,  by 
which  the  conclusion  was  arrived  at,  that  all  railways  must 
equally  be  an  additional  burden  upon  the  fee.  Whether  the 
proper  distinction  between  street  railways  and  those  occupying 
a  distinct  route  and  transacting  mainly  a  distinct  business  will 
ever  be  clearly  defined  is  perhaps  questionable. 

9.  It  seems  very  certain  that  the  grant  to  a  railway  company 
of  the  right  to  pass  along  the  streets  of  a  city  or  town  can  confer 
no  right  to  erect  stations  and  other  permanent  structures  in  the 
streets,  and  thereby  render  them  unfit  for  use  as  streets.22  In 
such  cases  the  adjoining  owners  will  be  entitled  to  redress  by 
way  of  damages,  whether  they  own  to  the  middle  line  of  the 
street  or  only  to  the  margin.22 

10.  But  the  owner  of  an  unimproved  building  lot  upon  a 
street  cannot  be  regarded  as  suffering  any  such  injury  from  the 
location  of  a  railway  along  the  public  street  adjoining  as  will 
entitle  him  to  an  injunction.23     And  the  fact  that  the  defendant 

20  New  Albany  Railw.  Co.  v.  O'Daily,  12  Ind.  11.  551. 

21  Elliott  v.  Fairhaven  &.  Westville  Railw.  Co.,  32  Conn.  R.  5  79. 
""'  Lackland  v.  North  Missouri  Railw.  Co.,  31  Mo.  R.  180. 

23  Zabriskie  v.  Jersey  City  &  Bergen  Railw.  Co.,  2  Beasley,  314. 


§  76.  RIGHT   TO   OCCUPY   HIGHWAY.  315 

owned  the  land  across  which  a 'railway  track  is  laid,  and  had 
never  released  the  right  of  way  to  the  railway,  is  no  ground  of 
defence  for  placing  obstructipns  upon  the  track.24  Nor-  will  the 
breach  of  contract  by  which  the  company  secured  the  right  of 
way  give  any  color  of  justification  to  the  land-owner  for  placing 
any  such  obstructions  on  the  track.24 

11.  Some  recent  cases  affecting  the  location  of  street  railways 
in  the  city  of  New  York  may  bo  of  interest  to  the  profession,  and 
we  have  therefore  inserted  in  the  note  below25  the  leading 
points  decided. 

84  State  v.  Hessenkamp,  17  Iowa,  25. 

26  Sixth  Avenue  Railw.  Co.  v.  Kerr,  45  Barb.  138,  where  the  following  points 
are  ruled. 

Where  a  railroad  is  laid  in  a  public  street,  under  a  permissive  grant  to  the 
company  to  use  a  portion  of  the  street  for  that  purpose,  the  company  does  not 
acquire  the  same  unqualified  title  and  right  of  disposition  to  the  land  occupied 
which  individuals  have  in  their  lands. 

The  only  exclusive  power  conferred  by  such  grants  is  that  of  using  railroad 
carriages  in  the  same  manner  as  the  grant  of  a  stage  line  confers,  for  the  time 
being,  the  grant  of  a  monopoly  of  using  such  stages  for  the  transportation  of 
passengers  for  hire  on  that  route.     lb. 

'  After  a  railroad  company  has  obtained  permission  from  the  Common  Council 
of  New  York  to  lay  a  railroad  through  certain  streets  of  the  city,  and  such  grant 
is  subsequently  confirmed  by  an  act  of  the  legislature,  the  legislature  has  the 
power  to  grant  similar  privileges  to  another  company,  and  to  authorize  the  lat- 
ter to  run  upon,  intersect,  or  use  any  portion  of  the  tracks  already  laid,  on  con- 
dition of  making  compensation  or  payment  to  the  first  grantees,  if  the  parties  do 
not  agree.     Jb. 

Such  a  grant  is  not  a  violation  of  any  right  of  property.  The  grantees  must 
be  considered  as  holding  the  grants  for  the  public  use,  in  the  public  street,  which 
is  all  open  to  the  public. 

The  right  to  grant  a  crossing  of  the  road  necessarily  involves  a  right  to  pass 
over  a  larger  portion  of  such  road,  when  the  legislature  so  directs.    lb. 

A  railroad  corporation,  by  acquiring  the  right  to  construct  its  road  across  a 
highway,  and  obtaining  title  to  the  land  for  its  road-bed,  does  not  destroy  or  im- 
pair the  public  easement.  The  perfect  and  unqualified  right  of  every  citizen  to 
pass  over  the  road  at  that  point  remains  the  same  as  before.     lb. 

The  common  council  of  the  city  of  New  York  has  no  power  to  authorize  an 
extension  of  a  city  railroad,  unless  possibly  where  such  extension  is  really  neces- 
sary to  the  enjoyment  of  a  previous  valid  grant.  People  v.  Third  Avenue  R. 
R.  Co.,  45  Barbour,  63. 

If  it  be  claimed  that  such  extension  is  a  necessary  incident  to  the  principal 
subject  of  the  grant,  that  is  a  question  of  fact,  and  the  burden  of  proving  it  rests 
on  the  railroad  company.    lb. 


316  EMINENT   DOMAIN.  §  76. 

By  the  act  incorporating  the  New  York  &  Harlem  R.  R.  Co.,  passed  April 
25,  1832,  the  company  was  empowered  to  construct  a  single  or  double  rail- 
road or  way  from  any  point  on  the  north  bounds  of  23d  Street,  in  the  city  of 
New  York,  to  any  point  on  the  Harlem  RiVer  between  the  east  bounds  of  the 
Third  Avenue  and  the  west  bounds  of  the  Eighth  Avenue,  with  a  branch  to  the 
Hudson  River,  between  124th  Street  and  the  north  bounds  of  129th  Street. 
Held,  1.  That  the  practical  location  of  the  railroad  within  the  prescribed  limits 
would  exhaust  the  powers  conferred,  and  prevent  a  subsequent  change  of  loca- 
tion, except  by  consent  of  the  legislature.  2.  That  the  location  of  the  tracks  (if 
there  were  two)  would  have  to  be  substantially  upon  the  same  route.  That  the 
permission  to  build  a  double  track  should  be  construed  to  mean  two  tracks  es- 
sentially upon  the  same  location,  for  the  purpose  of  enabling  cars  to  run  in  op- 
posite directions,  and  not  two  essentially  different  routes  through  different  streets 
and  avenues,  such  as  would  be  occupied  by  parallel  railroads ;  especially  as  the 
right  of  granting  to  other  persons  or  corporations  authority  to  construct  parallel 
railroads  on  streets  or  avenues  not  occupied  by  the  New  York  and  Harlem  R. 
R.  Co.  was  expressly  reserved  to  the  legislature  by  the  sixteenth  section  of  the 
same  act.     People  v.  N.  Y.  &  Harlem  R.  R.  Co.,  45  Barbour,  73. 

By  an  amendatory  act  of  the  6th  of  April,  1832,  the  company  was  "  author- 
ized and  empowered,  with  the  permission  of  the  mayor,  &c.  of  New  York,  to  ex- 
tend their  railroad  along  the  Fourth  Avenue  to  14th  Strefet,  and  through  such 
other  streets  as  the  mayor,  &c,  might  from  time  to  time  permit,  subject  to  such 
prudential  rules  "  as  were  prescribed  by  the  act,  and  as  the  said  mayor,  &c.,  in 
common  council  convened,  might  prescribe.  Held,  that  the  precise  route  of  the 
extension  was  not  intended  to  be  defined  by  the  act,  but  this  was  designedly 
left  to  the  sound  discretion  of  the  common  council ;  and  the  road  was  to  be  ex- 
tended through  such  other  streets  as  the  mayor,  &c,  might  from  time  to  time 
permit.     lb. 

That  this  was  a  continuous  power,  left  to  be  exercised  from  time  to  time  as  the 
wants  of  the  community  should  require.  It  was  not,  therefore,  a  power  which 
was  spent  by  a  single  grant  or  permission,  but  might  be  repeatedly  exercised, 
according  to  the  exigency  of  the  case.     lb. 

Held,  also,  that  the  extension  authorized  by  the  act  of  April  6,  1832,  was  a 
longitudinal  and  not  a  lateral  one  ;  and  it  was  not  meant  that  it  should  pursue 
the  same  precise  direction  with  that  portion  of  the  road  to  which  it  was  attached, 
and  not  in  any  degree  diverging  from  such  a  course,  but  that  it  should  have  the 
same  general  direction  as  a  southern,  southeastern  or  southwestern  direction, 
and  not  a  direction  to  opposite  or  widely  divergent  points  of  the  compass.     lb. 

Held,  further,  that  a  reasonable  interpretation  of  the  act  required  that  the 
extension  should  be  made  from  the  termination  of  the  road  already  constructed, 
so  as  to  be  a  legitimate  continuation  and  prolongation  thereof.  That  it  was  to 
go  further,  not  to  return  back.  It  was  to  be  continued,  not  to  branch  off".  It 
was  to  be  a  single  route,  not  several  routes.  It  was  to  be  an  extension,  and  not 
a  branch.    lb. 

Accordingly,  the  common  council  of  New  York  having  professedly,  in  pursu- 
ance of  the  authority  given  by  the  act  of  April,  1832,  passed  an  ordinance  on  the 


§7G. 


EIGHT   TO   OCCUPY   HIGHWAY. 


317 


21st  of  April,  18G3,  granting  permission  to  the  New  York  &  Harlem  R.  R.  Co. 
to  extend  its  railroad,  and  construct  a  double  track  from  their  present  Fourth 
Avenue  track,  between  17th  and  18th  Streets,  through  Broadway  to  the  foot  of 
Whitehall  Street,  with  an  additional  track  around  Bowling-Green  and  State 
Street,  and  another  additional  single  track  around  Union  Square  ;  with  further 
permission  to  construct  an  additional  single  track  to  the  Fulton  Ferry,  through 
John  Street,  &c,  returning  through  Fulton  Street;  and  to  extend  its  railroad 
and  construct  a  double  track  in  Fourth  Avenue,  through  23d  Street  to  Madison 
Avenue,  and  thence  through  Madison  Avenue  as  far  as  it  is  or  hereafter  may  be 
opened  ;  with  further  permission  to  connect  therewith  by  a  single  or  double 
track  from  Fourth  Avenue  to  Madison  Avenue,  through  24th  Street.  Held,  that 
the  permission  attempted  to  be  granted  by  the  ordinance  was  not  warranted  by 
the  terms,  intent,  or  fair  interpretation  of  the  act  of  Cth  April,  1832.     lb. 

Held,  also,  that  the  permission  granted  by  the  common  council  to  the  railroad 
company  was  not  maintainable  as  a  lawful  exercise  of  power  granted  to  the 
common  council  under  the  ancient  Uongan  and  Montgomery  charters,  indepen- 
dent of  any  statutory  grant  or  authority.     lb. 

We  have  thought  it  proper  to  here  insert  the  substance  of  our  views  on  some 
of  the  questions  just  discussed,  as  contained  in  a  report  to  the  legislature  of  Mas- 
sachusetts, upon  the  rights,  duties,  and  interests  of  street  railways  in  the  Com- 
monwealth, in  January,  1865. 


THE    PROPERTY   RIGHTS    OF    THE    COMPANY   CONSIDERED. 


1.  The  interest  demands  reasonable  protection. 

2.  The  legislature  have  power  to  impose  a  perma- 

nent burden  upon  streets. 

3.  But  this  is  not  to  be  assumed  as  matter  of  con- 

struction. 

4.  Decisions  not  uniform.       Generally  held  that 

street  railway  franchise  exists  in  the  easement 
for  the  highway.    Analogy  of  steam  roads. 

5.  Street  railways  do  not  increase  the  servitude  of 

the  highway. 

6.  Must  always  be  regarded,  and  treated,  as  a  por- 

tion of  the  highway. 

7.  The  estate  or  franchise  of  street  railicays,  exclu- 

sive, as  to  passenger  traffic. 


8,  9.   This  point  further  illustrated. 

10.  How  far  the  legislature  may  affect  the  exclu- 

siveness  of  this  franchise. 

11.  Where  co?npensation  is  required,  no  abridgment 

of  right  implied. 

12.  The  franchise  and  property  must  re?nain  sub- 

ject to  legislative  and  municipal  control. 

13.  Some  states  allow  additional  land-damages  for 

change  of  grade  of  the  street. 

14.  This  not  demandable,  unless  the  change  is  re- 

quired for  something  in  addition  to  highway, 
or  unless  given  by  special  statute. 
15-19.   Summary   of  the    argument    under   this 
head. 


1.  We  shall  now  state,  as  briefly  as  practicable,  and  make  it  intelligible,  the 
true  nature  of  the  property  of  the  companies  in  their  locations,  as  we  understand 
it,  and  what  further  legislation,  if  any,  is  demanded  on  their  behalf.  During 
the  hearing  it  was  a  good  deal  pressed  upon  our  consideration,  that  some  further 
provision  of  law  was  demanded,  in  order  to  render  so  large  an  amount  of  capital, 
as  that  already  invested  in  street  railways,  as  secure  as  possible,  its  present  inse- 
curity tending  very  unjustly  and  unnecessarily  to  depreciate  its  value  in  the 
market.  There  is  great  reason  and  justice  in  this  claim,  provided  it  can  be  done 
without  too  great  infringement  of  other  interests,  or  too  great  departure  from 
the  established  policy  of  the  law,  in  regard  to  such  other  interests. 

2.  We  make  no  question  of  the  right  of  the  supreme  legislative  power  of  the 


318  EMINENT   DOMAIN.  §  76. 

Commonwealth  to  impose  a  permanent  burden  upon  the  streets  and  highways, 
throughout  its  limits,  in  favor  of  street  railway  companies. 

3.  But  such  a  step  is  so  much  at  variance  with  the  general  policy  of  states  in 
this  country,  and  everywhere,  so  far  as  we  know,  that  it  cannot  be  assumed,  as 
matter  of  construction,  upon  any  general  and  doubtful  provisions  of  legislation. 
And  we  have  felt  it  to  be  our  duty  to  examine  carefully  into  the  legislation  and 
decisions  of  the  different  states,  in  order  to  determine,  if  we  could,  the  nature 
and  extent  of  the  franchise,  or  estate,  of  the  street  railway  companies,  consequent 
upon  the  grant  of  their  charters  and  the  location  of  their  tracks. 

4.  In  looking  into  these  decisions,  we  find  no  uniformity,  and  no  such  view  of 
the  principles  involved,  as  will  be  likely  to  result  in  the  attainment  of  uniformity 
of  decision,  at  least  for  many  years  to  come.  In  a  large  number  of  the  cases 
which  have  come  before  the  courts,  in  the  different  states,  it  seems  to  have  been 
assumed,  as  matter  of  course,  that  street  railways,  laid  in  the  public  streets  and 
highways,  become  a  part  of  the  public  easement  in  such  streets  and  highways, 
and  that  the  owners  of  the  fee  of  the  land  covered  by  such  railways,  or  the  ad- 
joining proprietors,  have  no  claim  for  additional  damages.  And  the  same  rule 
has  been  extended  to  steam  railways,  laid  in  the  public  streets  and  highways,  in 
a  majority  of  the  states  where  the  question  has  been  decided.  This  we  cannot 
regard  as  a  sound  principle,  as  to  steam  railways.  For  although  they  may  be 
regarded,  in  a  certain  sense,  as  a  public  highway,  for  the  passing  and  repassing 
of  all  persons  who  choose  to  avail  themselves  of  the  privilege,  in  that  particular 
mode  of  travel,  it  is  very  obvious  that  they  are,  in  no  sense,  a  common  highway 
for  public  travel,  in  the  ordinary  sense,  or  the  ordinary  mode.  They  do  not 
admit  of  such  communication  along  their  line.  They  are  confined  to  a  single 
mode  of  communication,  which  is  exclusively  under  the  control  of  a  private 
company,  and.  they  impose  a  servitude  upon  the  land,  for  the  exclusive  benefit 
of  this  private  company,  as  distinct,  and  as  clearly  an  additional  burden,  from 
the  easement  for  the  ordinary  highway,  as  a  canal,  or  any  other  public  work 
which  it  is  possible  to  conceive.  Hence,  in  the  state  of  New  York  the  Court 
of  Appeals  have  reversed  their  former  decisions,  and  now  follow  the  English 
courts,  and  hold  the  owner  of  the  fee,  covered  by  a  highway,  entitled  to  addi- 
tional compensation,  where  a  steam  railway  is  laid  either  across  or  along  its 
course.  Some  other  states  have  of  late  taken  the  same  view,  and  we  feel  con- 
fident that  so  reasonable  a  doctrine  must  ultimately  prevail  throughout  the 
country.  It  may  be  proper  here  to  state,  what  will  occur  to  any  one,  that  while 
the  track  of  the  street  railway  is  not,  or  should  not  be,  an  impediment  to  the  use 
of  the  highway  for  ordinary  vehicles,  the  rail  of  the  steam  road  is  required  to  be 
so  constructed  as  to  prove  a  very  serious  impediment  to  ordinary  travel ;  and 
there  are  other  important  grounds  of  distinction  between  the  steam  railways,  as 
at  present  operated,  and  the  street  railways. 

5.  In  regard  to  street  railways,  therefore,  the  question  is  very  different,  as  to 
creating  an  additional  servitude  upon 'the  land.  They  are  confined  to  the  pub- 
lic highways  ;  as  a  general  thing,  no  alteration  in  grade  is  required.  They  are 
not  allowed  to  use  such  motive  power  as  will  seriously  annoy  other  travellers, 
or  the  adjoining  proprietors.     The  statutes,  whether  general  or  special,  under 


§  76.  RIGHT    TO    OCCUPY   HIGHWAY.  319 

which  these  companies  have  gone  into  operation,  have  been  studiously  drawn, 
with  a  special  view  to  make  this  new  mode  of  transportation  inherent  merely 
in  the  public  easement  of  the  highway.'  This  has  been  done,  probably,  with  the 
double  purpose  of  escaping  the  payment  of  additional  land  damages,  and  at  the 
same  time  to  quiet  the  public  mind  as  to  any  apprehension  that  the  companies 
might  ultimately  set  up  a  claim  for  vested  rights,  which  should  prove  to  be  be- 
yond the  control  of  the  municipal  authorities,  or  even  of  the  legislature. 

6.  From  the  form  of  these,  grants,  the  manner  of  the  construction  and  opera- 
tion of  the  roads,  and  the  early  current  of  decisions  upon  the  subject,  no  doubt 
was  entertained  that  they  would  always  be  regarded  and  treated  as  a  portion 
of,  and  inhering  only  in,  the  highway,  and  as  creating  no  estate  in  the  soil  be- 
yond that  of  the  public  easement  for  the  highway. 

7.  This  being  assumed,  the  inquiry  becomes  nice,  and  somewhat  difficult,  as 
to  what  precise  estate  or  interest  is  vested  in  the  corporations.  It  is  certain,  we 
think,  that  the  grant  of  an  act  of  incorporation  to  a  company  for  the  purpose  of 
constructing  and  operating  a  railway  for  the  transportation  of  passengers,  al- 
though located  in  and  along  the  highway,  is  a  franchise,  and  one  of  an  exclusive 
character,  to  some  extent.  The  extent  of  the  exclusiveness  of  a  grant  of  this 
character,  where  no  exclusive  words  are  contained  in  the  grant,  must  depend 
upon  the  reasonable  and  fair  implications,  to  be  gathered  from  the  nature  of  the 
business,  and  other  surrounding  circumstances.  And  in  a  case  of  this  kind, 
where  the  incorporation  is  exclusively  for  the  purpose  of  transporting  passen- 
gers and  taking  tolls,  we  think  it  must  be  regarded  as  a  fair  implication,  from 
the  very  nature  of  the  grant,  the  investment  requisite  to  carry  it  into  operation, 
and  the  necessity  of  avoiding  competition  in  order  to  produce  any  adequate  return, 
that  the  franchise  must  be  considered  as  being  exclusive  of  all  similar  transpor- 
tation upon  the  same  route,  by  mere  private  enterprise.  It  would  be  little  short 
of  absurdity  to  suppose  that  it  could  have  entered  into  the  contemplation  of  the 
legislature,  or  of  the  companies,  that  after  obtaining  their  location,  and  after 
having  erected  and  equipped  their  roads,  at  large  expense,  it  was  still  compe- 
tent for  any  person,  natural  or  corporate,  at  his  own  mere  option,  to  construct 
cars  and  divide  the  business,  by  running  upon  the  same  track  laid  by  such  com- 
pany. 

8.  This  will  be  more  obvious  by  considering  the  nature  of  the  business.  It  is 
not  like  ordinary  mechanical  or  manufacturing  business,  which  any  one  may  in- 
stitute at  pleasure.  A  grant  of  incorporation,  for  such  or  any  similar  business, 
implies  nothing  exclusive  in  the  conduct  of  the  business.  The  franchise,  in 
such  a  corporation,  does  not  extend  beyond  the  mere  fact  of  acting  in  a  corporate 
capacity,  or  being  a  corporation.  That  only  is  exclusive  in  the  grant  which  is 
of  a  prerogative  character,  and  requires  the  consent  of  the  sovereign  for  its  cre- 
ation. If  it  were  competent  for  any  one  to  lay  a  passenger  railway  in  the 
Streets,  at  his  own  option,  or  if  any  one  could  obtain  such  a  right  from  the  mu- 
nicipal authority,  or  from  any  source  except  the  legislature,  then  the  grant  of  an 
incorporation  for  carrying  on  the  business  would  not  naturally  be  construed  to 
exclude  others  from  carrying  on  the  same  business,  at  the  same  place.  And 
this  was  the  view  at  first  attempted  to  be  maintained,  as  to  street  railways,  i.  e., 


320  EMINENT   DOMAIN.  §  76. 

that  the  cities  and  towns  might  create  them,  by  special  grants,  to  individuals  or 
companies. 

9.  Hut  this  view  has  long  since  been  abandoned,  and  it  is  now  entirely  well 
settled  that  such  a  franchise  in  the  highways  can  only  be  created  by  legislative 
grant.  It  is  a  franchise  to  carry  passengers,  and  to  demand  tolls.  This  is  one 
of  the  prerogatives  of  sovereignty,  and  only  derivable  through  the  action  of  the 
legislature.  It  must,  therefore,  in  its  very  nature,  be  exclusive  of  all  interfer- 
ence from  any  quarter  subordinate  to  the  authority  from  which  it  was  derived. 
There  can  then,  we  think,  be  no  question  whatever,  that  the  franchise  of  these 
street  railway  companies  is  exclusive  of  all  competition,  or  interference  in  their 
business,  except  under  the  paramount  authority  of  the  legislature. 

10.  It  was  indeed  made  a  question  before  us,  how  far  it  was  competent  for  the 
legislature  even,  after  granting  an  exclusive  franchise  of  this  character  to  one 
company,  to  virtually  repeal  it,  by  permitting  other  companies  to  come  upon  the 
same  track  and  do  a  competing  business.  This  is  one  of  those  things,  where  the 
legislative  power  of  a  state  may  sometimes  do  that  indirectly,  provided  they  act 
in  good  faith  (which  is  always  to  be  presumed),  which  they  could  not  do  di- 
rectly. For  instance,  it  could  not  be  claimed  that  the  legislature,  after  creat- 
ing such  a  franchise,  could,  by  a  direct  act  of  legislation,  either  repeal  the  char- 
ter, or  take  away  the  right  of  compensation  by  way  of  tolls  or  fare.  But  they 
may,  nevertheless,  allow  other  persons,  either  natural  or  corporate,  to  do  a  sim- 
ilar business  in  the  same  streets  ;  or  to  do  it,  upon  the  tracks  of  an  existing  com- 
pany, by  making  compensation  to  the  other  company,  whenever  in  their  judg- 
ment the  public  good  requires  it.  In  the  one  case,  the  grant  being  wholly 
independent,  is  understood  to  be  made  because  the  amount  of  travel  is  supposed 
to  require  two  such  modes  of  conveyance  ;  and  in  the  other,  the  compensation 
being  regarded  as  an  equivalent  for  the  use. 

11.  But  where  the  legislature  do  not  grant  a  distinct  company  to  do  similar 
business  along  the  same  routes,  it  is  fair  to  conclude  that  there  is  no  purpose 
of  abridging,  or  in  any  manner  qualifying,  the  rights  before  conceded  to  a  simi- 
lar company.  And  the  mere  permission  of  a  branch  road  to  come  upon  the 
track  of  an  existing  trunk  route,  where  the  object,  whether  for  the  transporta- 
tion of  its  own  passengers,  or  to  take  up  and  set  down  other  passengers  along 
the  line  of  the  trunk  route,  is  not  specifically  defined,  is  not,  ordinarily,  to  be  so 
construed,  as  to  effect  an  essential  abridgment  of  the  rights  and  interests  of  the 
trunk  line.  All  reasonable  implications  should  be  made  in  the  opposite  direc- 
tion, both  upon  the  ground  that  the  legislature  must  be  presumed  to  intend  to 
act  with  entire  justice  towards  the  company  first  chartered,  and  first  investing 
capital  upon  the  route,  and  also,  upon  the  ground  that  the  provision  for  com- 
pensation clearly  shows  that  there  was  no  purpose  of  abridging  the  rights  of  the 
first  company,  by  allowing  the  second  company  to  run  its  cars  over  the  track  of 
the  former. 

12.  It  is  upon  this  ground  that  we  have  come  to  the  conclusion  already  stated 
in  regard  to  compensation  for  the  use  of  a  trunk  line  by  a  branch  company, 
when  it  diverts  a  portion  of  the  traffic.  But  we  cannot  regard  this  rule  of  com- 
pensation, or  the  presumptions  of  law  upon  which  it  is  based,  as  imposing  any 


§  76  RIGHT  TO   OCCUPY   HIGHWAY.  321 

restrictions  upon  the  power  of  the  legislature,  or  that  the  general  law  of  the 
Commonwealth  or  the  Constitution  of  the  United  States  restrains  the  legisla- 
ture, in  regard  to  permitting  subsequently  chartered  companies  from  coming 
upon  the  track  of  other  and  older  companies.  From  the  very  fact  that  the 
franchise  of  street  railways  is  made  to  exist  only  in  the  public  easement  of  the 
highway,  there  arises  a  clear  presumption,  that  the  use  of  such  tracks  was  in- 
tended to  remain  forever  subject  to  the  control  of  the  legislature,  and  that  they 
could  either  control  such  use,  by  legislation,  or  make  it  subject  to  the  absolute 
control  of  the  municipalities.  It  does  not  seem  to  us  possible  for  the  companies 
to  escape  this  state  of  uncertainty,  so  long  as  their  franchise  is  vested  only  in  the 
public  easement  of  the  highway,  unless  they  can  induce  the  legislature  to  give 
them  exclusive  and  independent  rights  in  the  highway,  by  express  grant ;  and 
it  is  doubtful  whether  even  this  would  bind  future  legislatures. 

13.  A  claim,  for  additional  compensation  to  the  abutters,  has  been  maintained 
against  such  companies,  in  some  states,  wherever  it  becomes  necessary  to  alter 
the  grade  of  the  streets  in  laying  the  rails,  in  such  a  manner  as  to  cause  special 
damage  to  such  adjoining  proprietors.  But  this,  we  think,  unless  allowed  by 
special  statute,  is  a  virtual  concession,  that  the  laying  a  street  railway  may,  in 
certain  contingencies,  prove  an  additional  servitude  upon  the  soil,  requiring 
compensation  beyond  that  of  the  easement  for  the  highway  ;  and  if  this  proposi- 
tion be  conceded,  it  will  be  impossible  to  escape  the  conclusion  that  the  street 
railway  is  something  distinct  from  the  public  easement  of  the  highway.  And  if 
it  be  not  a  part  of  the  same  thing,  and  identical  with  it,  then  the  owner  of  the 
fee  of  the  land  in  which  such  easement  exists,  may  always  claim  damages  for  the 
location  of  a  street  railway.  But  this  is  not  the  view  of  the  rights  of  such  com- 
panies which  has  generally  been  taken,  or  which  we  think  sound. 

14.  On  the  other  hand,  if  the  street  railway  is  only  a  part  of  the  highway, 
inherent  in  the  public  easement,  then  no  additional  compensation  to  the  land- 
owner is  due,  in  consequence  of  any  alteration  in  the  grade  of  the  street  or 
highway,  unless  granted  by  special  statute.  That  will  be  only  one  of  those  le- 
gitimate contingencies  which  were  fairly  within  the  range  of  the  purposes  for 
which  the  easement  of  the  highway  was  originally  taken,  and  which  should 
have  been  taken  into  account,  and  is  therefore  presumed  to  have  been  taken 
into  account,  in  estimating  compensation  to  the  land-owner  in  the  first  instance. 
For,  in  assessing  damages  for  a  highway,  there  must  be  taken  into  the  judg- 
ment, not  only  the  present  injury,  from  building  the  highway  in  the  first  in- 
stance, but  from  all  future  and  allowable  alterations  of  the  same.  And  this  will 
embrace,  not  only  the  accommodation  of  the  way  to  the  present  modes  of  ordi- 
nary travel  and  transportation,  but  to  all  such  modes  of  travel  and  transporta- 
tion as  may  hereafter  arise  in  the  ordinary  course  of  improvement,  without  ex- 
tending it  beyond  the  contemplated  use  of  an  ordinary  highway.  And  if  the 
street  railway  comes  within  this  range,  the  fact  that  it  is  new,  or  that  in  some 
instances  it  may  require  to  be  accommodated  with  a  different  grade,  to  some 
extent,  will  be  no  ground  for  claiming  additional  compensation  to  the  owner  of 
the  fee.     This  is  often  true  in  laying  a  plank  road  over  an  ordinary  highway, 

VOL.  i.  21 


322  EMINENT   DOMAIN.  §  76. 

but  we  are  not  aware  that  any  additional  compensation  is  ever  required,  on 
that  account,  in  the  case  of  laying  a  plank  road  upon  an  existing  highway- 
So,  too,  in  altering  the  grade  of  the  highway,  without  introducing  any  change  in 
the  mode  of  construction,  great  injury  may  occur  to  the  abutters,  and  one  not 
contemplated,  precisely  in  that  form,  at  the  time  the  land  was  taken ;  and  still 
no  additional  compensation  can  be  claimed,  or  allowed,  unless  by  statute,  since 
it  comes  within  the  range  of  the  purpose  for  which  the  land  was  originally  taken. 
Each  party  assumes  the  risk  of  any  change  in  the  use,  or  its  entire  abandonment 
as  a  highway.  In  the  one  case  no  additional  compensation  can  be  claimed, 
and  in  the  other,  there  is  no  duty  of  refunding  what  is  already  paid  by  way  of 
damages. 

15.  We  must,  therefore,  to  sum  up  the  results  of  the  argument  upon  this 
point,  conclude,  that  the  street  railway  companies  in  the  Commonwealth,  by  the 
grant  of  their  charters,  acquired  a  franchise  of  a  prerogative  character,  not  lia- 
ble to  be  intruded  upon,  after  the  location  and  construction  of  their  roads,  except 
by  authority  derived  from  the  legislature,  or  by  virtue  of  some  condition  annexed 
either  to  the  grant  or  the  location. 

16.  But  we  think,  so  long  as  the  grant  is  not  exclusive  in  terms,  it  must  be 
regarded  as  a  fair  implication,  from  the  fact  of  the  franchise  residing  only  in  the 
public  easement  of  the  highway,  that  the  legislative  authority  of  the  common- 
wealth has  entire  control  of  the  use  of  such  erections  as  are  made  by  virtue  of 
the  first  grant ;  and  that  it  may,  at  any  time,  define  such  use  by  the  public  gen- 
erally ;  and  by  natural  or  corporate  persons,  for  transporting  passengers  for 
hire,  by  making  compensation.  And  from  the  same  view  it  must  equally 
result,  that  the  legislature  may  delegate  the  control  of  this  use  to  the  municipal 
authorities. 

1 7.  And  consequently  we  have  not  been  able  to  devise  any  legal  mode  in 
which  the  property  rights  of  these  companies  can,  with  propriety,  so  long  as 
they  exist  only  in  the  public  franchise  of  the  highway,  be  made  more  secure. 
The  franchise  is  exclusive  of  all  interference  except  by  authority  derived  from 
the  legislature,  but  it  exists  where  its  continuance  is  only  at  the  will  of  others 
who  have  the  legitimate  control  of  the  highways. 

18.  If  it  is  taken  or  interfered  with,  by  the  authority  of  the  legislature,  for 
merely  public  uses,  such  as  the  greater  accommodation  of  public  travel,  then  no 
compensation  is  demandable,  since  that  is  one  of  the  conditions  or  contingencies 
upon  which  the  grant  was  accepted.  But  so  far  as  this  franchise  is  taken,  or 
interfered  with,  for  the  advancement  of  private  ends  and  enterprises,  the  first 
grantee  is  entitled  to  full  compensation,  as  much  as  for  any  other  property. 

19.  This,  then,  although  an  exclusive  franchise,  so  far  as  the  carrying  of  pas- 
sengers and  taking  tolls  is  concerned,  is  a  mere  estate  at  will,  so  far  as  the  legis- 
lative power  is  concerned,  or  the  general  demands  of  the  public  interest  may 
require,  through  the  action  of  the  municipal  authorities. 


§77. 


CONFLICTING   RIGHTS   IN   DIFFERENT   COMPANIES. 


323 


*SECTION    XV. 


Conflicting'  Rights  in  different  Companies. 


1.  Railway  company  subservient  to  another, 
can  only  take  of  the  other  land  enough 
for  its  track. 


2.    Where  no  apparent  conflict  in  route  Jirtt 
located  acquires  superior  right. 


§  77.  1.  Where  the  defendants'  statutory  powers  were  sub- 
ject to  those  conferred  upon  the  plaintiffs,  whose  charter  was 
first  granted,  *  providing  that  the  plaintiffs'  powers  shall  not  be 
so  exercised  as  to  prevent  the  defendants  from  compulsorily  tak- 
ing and  using  land  sufficient  to  construct  their  branch  lines,  not 
exceeding  twenty-two  feet  in  width,  at  the  level  of  the  rails,  the 
plaintiffs  having  first  purchased,  with  the  consent  of  the  owner, 
lands  which  the  defendants  proposed  to  take,  beyond  the  twenty- 
two  feet,  for  purposes  of  building  stations,  &c,  it  was  held,  that 
the  plaintiffs  having  occupied  the  ground  first,  were  entitled  to 
hold  so  much  as  was  not  actually  necessary  for  the  formation  of 
defendants'  railway.1 

2.  Where  two  railway  companies  were  incorporated  to  com- 
plete independent  lines  across  the  state,  only  the  termini  of 
either  being  prescribed,- there  being  no  apparent  or  necessary 
conflict  of  the  routes,  it  was  held,  that  the  company  which  first 
surveyed  and  adopted  a  route,  and  filed  the  survey  in  the  proper 
office,  were  entitled  to  hold  it,  without  reference  to  the  date  of 
the  charters,  both  being  granted  at  the  same  session  of  the  legis- 
lature.2 


1  Lancaster  &  Carlisle  Railw.  v.  The  Maryport  &  Carlisle  Railw.,  4  Railw.  C. 
504;  post,  §  105. 

2  Morris  &  Essex  Railw.  v.  Blair,  1  Stockton  (N.  J.)  Ch.  635. 

A  similar  decision,  in  principle,  is  made  in  Gawthern  v.  Stockport,  Disley  & 
W.  Railw.,  29  Law  Times,  308,  Rolls  Court,  March,  1857.  In  this  case  the 
railway  first  chartered  was  laid  out  and  partly  built,  but  had  been  lying  by  some 
time,  and  the  Master  of  the  Rolls  held,  a  subsequent  railway  was  not  precluded 
from  interfering  with  the  contemplated  route  of  the  first  railway.  One  railway 
may  be  laid  across  the  line  of  another  company,  but  the  latter  will  be  entitled 
to  damages,  although  the  former  is  laid  upon  piles  over  tide  water.  Grand  J.  & 
Depot  Co.  v.  County  Commissioners,  14  Gray,  553.     And  it  is  here  said,  where 

*164,  165 


324  EMINENT   DOMAIN.  §78. 

SECTION    XVI. 

Right  to  Build  over  Navigable  Waters. 


1.  Legislature  may  grant  the  right. 

2.  Riparian    proprietor   owns    only    to    the 

water. 

3.  His  rights  in  the  water  subservient  to  pub- 

lic use. 

4.  Legislative  grant  paramount,  except   the 

national  rights. 

5.  State  interest  in  flats  where  tide  ebbs  and 

flous. 

6.  Rights  of  adjoining  owners  in  Massachu- 

setts. 

7.  Railway  grant  to  place  of  shipping. 


8.  Principal  grant  carries  its  incidents. 

9.  Grant   of  a   harbor   includes  necessary 

erections. 
10,   11.  Large  rivers  held  navigable  in  this 
country. 

12.  Land  being  cut  off  from  wharves  is  "  in- 

juriously affected." 

13.  Paramount  rights  of  Congress  infringed 

creates   a  nuisance.      Party   specially 
injured  may  have  action. 

14.  Case  in  New  Hampshire. 

15.  Obstruction,  if  illegal,  per  se  a  nuisance. 


§78.  1.  In  regard  to  navigable  streams,  it  seems  to  be  a  con- 
ceded point,  that  the  owner  of  land  adjoining  the  stream  has  no 
*  property  in  the  bed  of  the  stream,  and  hence  that  the  legisla- 
ture in  England  may  give  permission  to  a  railway  company  to  so 
construct  their  road,  as  to  interfere  with  and  alter  the  bed  of 
such  a  stream,  to  the  damage  of  any  owner  of  adjoining  land, 
in  regard  to  flowage,  or  otherwise,  even  to  the  hinderance  of 
accustomed  navigation,  without  compensation ;  and  that  /the 
railway  company,  in  constructing  their  road  within  the  provis- 
ions of  the  act,  do  not  become  liable  to  an  action  for  damages,  to 
any  such  proprietor  of  adjoining  land.1 

two  railway  companies  file  a  joint  location,  they  are  jointly  liable  for  damages 
to  land-owners  ;  and  a  location  may  refer  to  a  plan  so  as  to  make  that  part  of 
the  location. 

1  Abraham  v.  Great  Northern  Railw.,  5  Eng.  L.  &  Eq.  258.  "  The  legisla- 
ture might  authorize  defendants  to  construct  a  causeway  or  bridge  across  navi- 
gable or  tide-waters,  although  the  navigation  might  be  thereby  impaired."  And 
in  a  very  recent  case  in  the  Queen's  Bench  (Jan.  1858),  Regina  v.  Musson,  30 
Law  Times,  272,  it  is  held  that  a  pier,  built  into  the  sea,  is  not  liable  to  the  parish 
rates,  except  so  far  as  it  is  above  high-water  mark.  Lord  Campbell,  Ch.  J.  said, 
"  As  to  the  part  between  high  and  low-water  mark,  it  is  quite  clear  that  the  soil 
between  high  and  low-water  mark  is  in  the  Crown,  and  prima  facie  extra  paro- 
chial. If  so,  the  onus  lies  on  the  parish  of  showing  it  is  within  the  limits  of  the 
parish.  That  may  be  done  by  evidence  of  perambulating  it,  in  the  parish 
*  166 


§  78.  ERECTIONS   OVER   NAVIGABLE   WATERS.  325 

2.  The  same  point  has  been  often  decided  in  this  country.2 
Whether  waters  are  navigable  or  not,  is  determined  by  the  ebb 
and  flow  of  the  tide.  And  although  streams,  above  that  point, 
are  navigable  often,  for  steamboats  and  lesser  water  craft,  and 
are  public  highways  for  such  purposes,  and  often  become  high- 
ways   by  prescription,  for  purposes  of  inferior  navigation,  as 

floating  timber,  and  wood,  and  possibly  they  may  be  regarded 
as  such  even  independent  of  such  prescription  ;  yet  the  owner- 
ship of  the  riparian  proprietor  to  the  middle  of  the  stream,  ad 
medium  filum  aqua,  is  not  excluded,  except  in  tide-waters,3  and 
such  large  rivers,  in  this  country,  as  by  authority  of  Congress  or 
common  consent  have  acquired  or  assumed  the  character  of 
navigable  waters,  although  not  coming  strictly  within  the  com- 
mon-law definition.4 

3.  But  in  tide-waters,  and  navigable  lakes,  the  rights  of  the 
owner  of  land  adjoining  such  waters,  in  the  stream,  are  subser- 
vient to  the  public  rights,  and  are  consequently  subject  to  legis- 
lative control,  and  any  loss  the  owner  of  such  land  may  thereby 
sustain  is  damnum  absque  injuria.1 

bounds,  or  of  reputation."  See  Parker  v.  Cutler  Milldam  Co.  20  Maine  R.  353  ; 
opinion  of  court  in  Brown  v.  Chadbourne,  31  Maine  R.  9;  Shepley,  Ch.  J., 
Rogers  v.  The  Kennebec  &  Portland  Railw.,  35  Maine  R.  319.  So,  too,  to 
construct  their  road  across  the  basins  of  a  water  company,  to  their  injury,  upon 
making  compensation.  Boston  Water  Power  Co.  v.  Boston  &  Worcester  Railw., 
23  Pick.  360 ;  s.  c.  1  Am.  Railw.  C.  298. 

2  Gould  v.  Hudson  River  Railw.,  2  Selden,  522  ;  post,  §  206. 

8  1  Hargrave's  Law  Tracts,  by  Lord  Hale,  12,  13,  85;  Angell  on  Tide- Wa- 
ters, c.  VI.  pp.  171,  172,  173,  174. 

4  Champlain  &  St  Lawrence  Railw.  v.  Valentine,  19  Barb.  484.  But  in  Bell 
v.  Gough,  3  Zab.  624,  it  is  held,  that  if  the  riparian  owner  have  made  improve- 
ments on  the  land  below  high  water,  so  as  to  have  reclaimed  it,  the  part  so  re- 
claimed belongs  to  him,  and  cannot  be  granted  by  the  state.  And  three  of  the 
judges,  in  the  trial  of  this  case,  in  the  Court  of  Appeals,  which  consisted  of  nine 
judges,  held  that  riparian  owners  have  a  vested  right  in  the  benefits  and  advan- 
tages arising  from  their  adjoining  the  water,  of  which  they  cannot  be  deprived 
without  compensation.  But  this  case,  although  exhibiting  great  research  and 
ability  and  considerable  learning,  is  not  altogether  in  accordance  with  the  gen- 
eral current  of  the  decisions  upon  the  subject,  and  is  probably  based  upon  the  cus- 
tom or  usage  which  has  prevailed  to  a  great  extent  in  some  sections  of  this  coun- 
try from  its  first  settlement,  originally  founded  upon  Colonial  statutes  probably, 
and  in  others,  perhaps,  growing  up  by  common  consent,  as  a  kind  of  local  law. 


326  EMINENT   DOMAIN.  §  78. 

*  4.  It  seems  to  be  considered,  that  the  state  legislatures 
have  unlimited  power  to  erect  bridges  and  railways,  and  make 
any  other  public  works  across  navigable  waters,  subject  only  to 
the  paramount  authority  of  the  national  government.5 

6  The  People  v.  Rensselaer  &  Saratoga  Railw.,  15  AVend.  113  ;  Bailey  v.  Phil. 
&  Wil.  Railw.,  4  Hairing.  389  ;  People  v.  City  of  St.  Louis,  5  Oilman,  351  ; 
Spooner  v.  McConnell,  1  McLean,  C.  C.  337  ;  State  of  Pennsylvania  v.  Wheel- 
ing Bridge  Company,  13  How.  518  ;  Wilson  v.  The  Blackbird  Creek  Marsh  Co., 
2  Pet.  (U.  S.)  245  ;  Hogg  v.  The  Zanesville  Canal  Co.,  5  Ham.  410  ;  U.  S.  v. 
The  N.  Bedford  Bridge  Co.,  1  W.  &  M.  401  ;  Atty.-Gen.  v.  Hudson  River 
Railw.,  1  Stockton,  Ch.  526  ;  Getty  v.  Same,  21  Barb.  617. 

In  the  late  case  of  Smith  v.  Maryland,  18  How.  (U.  S.)  71,  it  is  held  that  the 
soil,  in  the  shores  of  Chesapeake  Bay,  in  the  state  of  Maryland,  below  low  wa- 
ter-mark, belongs  to  the  state,  subject  to  any  prior  lawful  grants  by  the  state,  or 
the  sovereign  power,  before  the  Declaration  of  Independence.  But  that  this 
right  of  soil  in  the  state  is  a  trust,  for  the  enjoyment  by  the  citizens  of  certain 
public  rights,  among  which  is  the  common  right  of  fishery ;  that  the  state  may 
lawfully  regulate  the  exercise  of  this  right,  and  declare  vessels  forfeit,  for  viola- 
tions of  regulations  so  established  ;  and  that  the  exercise  of  such  powers  by  the 
state  is  no  infringement  of  the  paramount  authority  of  Congress,  or  of  the  exclu- 
sive admiralty  and  maritime  jurisdiction  of  the  United  States  courts. 

In  the  case  of  Milnor  v.  The  Railway  Companies,  and  Others  v.  The  Plank- 
Road  Companies,  in  New  Jersey,  before  the  Circuit  Court  of  the  United  States, 
where  it  was  sought  to  restrain  the  companies  from  bridging  the  Passaic  River, 
below  Newark,  which  had  been  erected  into  a  port  of  entry  by  Congress,  and 
had  some  foreign  commerce,  and  some  internal  navigation,  the  following  points 
were  ruled  by  Mr.  Justice  Grier,  6  Law  Reg.  6  :  "A  court  of  the  United  States 
has  no  jurisdiction  to  restrain,  by  injunction,  the  erection  of  a  bridge  over  a 
navigable  river  lying  wholly  within  the  limits  of  a  particular  state,  where  such 
erection  is  authorized  by  the  legislature  of  the  state,  though  a  port  of  entry  has 
been  created  by  Congress  above  the  bridge.  Dicta,  in  Devoe  v.  Penrose  Ferry 
Bridge  Co.,  3  Am.  L.  Reg.  83,  overruled ;  and,  in  Pennsylvania  v.  Wheeling 
Bridge  Co.,  13  How.  579,  explained. 

The  point  overruled  by  the  learned  judge  is  thus  stated  by  him :  "  That  al- 
though the  courts  of  the  United  States  cannot  punish,  by  indictment,  the  erec- 
tion of  a  nuisance  on  our  public  rivers,  erected  by  authority  of  a  state,  yet 
that  as  courts  of  chancery  they  may  interfere  at  the  instance  of  an  individual 
or  corporation  who  are  likely  to  suffer  some  special  injury,  and  prohibit,  by  in- 
junction, the  erection  of  nuisances  to  the  navigation  of  the  great  navigable  riv- 
ers leading  to  the  ports  of  entry  within  a  state."     3  Amer.  Law  Reg.  p.  83. 

The  following  extract  from  the  opinion  gives  the  point  of  the  decision  :  "  The 

Passaic  River,  though  navigable  for  a  few  miles  within  the  state  of  New  Jersey, 

and  therefore  a  public  river,  belongs  wholly  to  that  state  ;  it  is  no  highway  to 

other  states,  no  commerce  passes  thereon  from  states  below  the  bridge  to  states 

*  167 


§  78.  ERECTIONS   OVER   NAVIGABLE   WATERS.  327 

5.   The  Commonwealth  of  Massachusetts  has  no  interest  in 
flats  where  the  tide  ebbs  and  flows,  which  it  is  necessary  to  have 

above.  Being  the  property  of  the  state,  and  no  other  state  having  any  title  to 
interfere  with  her  absolute  dominion,  she  alone  can  regulate  the  harbors,  wharves, 
ferries,  or  bridges,  in  or  over  it.  Congress  has  the  exclusive  power  to  regulate 
commerce,  but  that  has  never  been  construed  to  include  the  means  by  which 
commerce  is  carried  on  within  a  state.  Canals,  turnpikes,  bridges,  and  railways, 
are  as  necessary  to  the  commerce  between  and  through  the  several  states,  as 
rivers.  Yet  Congress  has  never  pretended  to  regulate  them.  When  a  city  is 
made  a  port  of  entry,  Congress  does  not  thereby  assume  to  regulate -its  harbor,  or 
detract  from  the  sovereign  rights  before  exercised  by  each  state  over  her  own 
public  rivers.  Congress  may  establish  post-offices  and  post-roads  ;  but  this  does 
not  affect  or  control  the  absolute  power  of  the  state  over  its  highways  and 
bridges.  If  a  state  does  not  desire  the  accommodation  of  mails  at  certain  places, 
and  will  not  make  roads  and  bridges  on  which  to  transport  them,  Congress  can- 
not compel  it  to  do  so,  or  require  it  to  receive  favors  by  compulsion.  Constitut- 
ing a  town  or  city  a  port  of  entry,  is  an-  act  for  the  convenience  and  benefit  of 
such  place,  and  its  commerce  ;  but  for  the  sake  of  this  benefit  the  constitution 
does  not  require  the  state  to  surrender  her  control  over  the  harbor,  or  the  high- 
ways leading  to  it,  either  by  land  or  water,  provided  all  citizens  of  the  United 
States  enjoy  the  same  privileges  which  are  enjoyed  by  her  own. 

"  Whether  a  bridge  over  the  Passaic  will  injuriously  affect  the  harbor  of  New- 
ark, is  a  question  which  the  people  of  New  Jersey  can  best  determine,  and  have 
a  right  to  determine  for  themselves.  If  the  bridges  be  an  inconvenience  to 
sloops  and  schooners  navigating  their  port,  it  is  no  more  so  to  others  than 
to  them.  I  see  no  reason  why  the  state  of  New  Jersey,  in  the  exercise  of  her 
absolute  sovereignty  over  the  river,  may  not  stop  it  up  altogether,  and  establish 
the  harbor  and  wharves  of  Newark  at  the  mouth  of  the  river.  It  would  affect 
the  rights  of  no  other  state.  It  would  still  be  a  port  of  entry,  if  Congress  chose 
to  continue  it  so.  Such  action  would  not  be  in  conflict  with  any  power  vested 
in  Congress.  A  state  may,  in  the  exercise  of  its  reserved  powers,  incidentally 
affect  subjects  intrusted  to  Congress  without  any  necessary  collision.  All  rail- 
ways, canals,  harbors,  or  bridges,  necessarily  affect  the  commerce  not  only 
within  a  state  but  between  the  states.  Congress,  by  conferring  the  privilege  of 
a  port  of  entry  upon  a  town  or  city,  does  not  come  in  conflict  with  the  police 
power  of  a  state  exercised  in  bridging  her  own  rivers  below  such  port.  If  the 
power  to  make  a  town  a  port  of  entry  includes  the  right  to  regulate  the  means 
by  which  its  commerce  is  carried  on,  why  does  it  not  extend  to  its  turnpikes, 
railways,  and  canals,  to  land  as  well  as  water  ?  Assuming  the  right  (which  I 
neither  affirm  nor  deny)  of  Congress  to  regulate  bridges  over  navigable  rivers 
below  ports  of  entry,  yet,  not  having  done  so,  the  courts  cannot  assume  to  them- 
selves such  a  power.  There  is  no  act  of  Congress  or  rule  of  law  which  courts 
could  apply  to  such  a  case.  It  is  possible  that  courts  might  exercise  this  discre- 
tionary power  as  judiciously  as  a  legislative  body,  yet  the  praise  of  being  '  a  good 
judge  '  could  hardly  be  given  to  one  who  would  endeavor  to  '  enlarge  his  juris- 


328  EMINENT   DOMAIN.  §  78. 

appraised,  under  the  statute,  when  such  land  is  taken,  as  ap- 
purtenant to  the  upland,  for  the  purpose  of  building  a  rail- 
diction  '  by  the  assumption,  or  rather  usurpation,  of  such  an  undefined  and  dis- 
cretionary power. 

"  The  police  power  to  make  bridges  over  the  public  rivers  is  as  absolutely  and 
exclusively  vested  in  a  state  as  the  commercial  power  is  in  Congress;  and  no 
question  can  arise  as  to  which  is  bound  to  give  way,  when  exercised  over  the 
same  subject-matter,  till  a  case  of  actual  collision  occurs.  This  is  all  that  was 
decided  in  the  case  of  Wilson  v.  The  Blackbird  Creek,  &o,  2  Peters,  245.  That 
case  has  been  the  subject  of  much  comment,  and  some  misconstruction.  It  was 
never  intended  as  a  retraction  or  modification  of  anything  decided  in  Gibbons. 
v.  Ogden,  or  to  deny  the  exclusive  power  of  Congress  to  regulate  commerce. 
Nor  does  the  Wheeling  Bridge  case  at  all  conflict  with  either.  The  case  of 
Wilson  v.  The  Blackbird  Creek,  &c.  governs  this  —  while  it  has  nothing  in  com- 
mon with  that  of  the  Wheeling  Bridge." 

And  where  the  legislature  of  the  colony  of  New  Jersey,  at  an  early  day 
(1760),  passed  an  act  to  enable  the  owners  of  meadows  along  a  small  creek 
emptying  into  the  Delaware  River,  and  into  which  the  tide  ordinarily  flowed 
for  about  two  miles,  to  support  and  maintain  a  dam,  to  shut  out  the  tide  from 
the  creek,  for  the  purpose  of  draining  such  meadows ;  and  enacted  that  said 
bank,  dam,  and  all  other  waterworks  already  erected,  or  which  should  thereafter 
be  found  necessary  to  be  erected,  for  the  more  effectual  preventing  the  tide  from 
overflowing  the  meadows  lying  on  the  said  creek,  should  be  erected,  supported, 
and  maintained  at  the  equal  expense  of  all  the  owners  and  possessors  of  the 
meadows,  defining  the  limits  up  the  creek  ;  and  provided  the  manner  in  which 
the  natural  watercourse  of  the  creek  should  be  kept  clear,  and  for  the  election 
yearly,  by  all  the  land-owners,  of  two  managers,  empowered  to  assess  the  owners 
or  occupiers  of  such  meadows,  as  they  should  deem  necessary  for  repairing  and 
maintaining  the  dam;  and  the  act  had  been  accepted  by  the  owners  of  the 
meadow,  managers  elected,  and  the  dam  repaired,  under  the  provisions  of  the 
act,  and  a  large  amount  expended,  from  time  to  time,  after  the  passage  of  the 
act;  and  where  the  legislature  in  the  year  1854  passed  an  act,  declaring  this 
creek  to  be  a  public  highway  in  all  respects,  as  fully  as  it  was  before  the  erection 
of  such  dam,  and  empowering  the  municipal  authorities  to  remove  the  dam,  and 
open  the  navigation  : 

It  was  held,  upon  a  bill  filed  in  equity  to  restrain  the  committee  of  the  town- 
ship from  performing  this  duty,  so  imposed  upon  them ; 

That  the  legislature  had  the  right  to  make  the  grant,  there  being  nothing  to 
show  that  the  public  interest  demanded  the  navigation  of  the  creek ; 

That  it  does  not  follow,  that  every  creek  or  rivulet,  into  which  the  tide  ebbs 
and  flows,  is  to  be  regarded  as  navigable  water,  in  such  sense  as  to  be  beyond  the 
control  of  the  legislature,  except  as  a  public  highway ;  and  the  legislature  is  the 
sole  judge,  to  determine  when  such  streams  shall  be  considered  navigable  rivers, 
and  be  maintained  and  protected  as  such;  that  the  act  of  1760  did  not  only 
authorize  the  owners  of  the  meadows  to  continue  the  dam,  but  it  gave  the 


§  78.  ERECTIONS   OVER   NAVIGABLE   WATERS.  329 

way.6  And  as  the  owner  has  the  right  to  raise  such  flats,  by  fill- 
ing up,  if  he  is  compelled  to  do  more  filling  up  to  secure  free 
access  to  other  lands,  by  reason  of  the  construction  of  a  railway, 

authority  of  the  state  to  compel  its  continuance;  that  the  act  of  1854  was  in 
violation  of  the  United  States  Constitution,  inhibiting  the  several  states  from 
passing  laws  impairing  the  obligation  of  contracts.  It  was  a  virtual  repeal  of 
the  former  act,  under  which  rights  had  become  vested,  and  valuable  property- 
acquired  ; 

That  the  act  of  1854  was  also  repugnant  to  the  constitution  of  the  state,  as  a 
taking  of  private  property  for  public  use,  without  just  compensation  ;  a  partial 
destruction,  or  diminution  of  the  value  of  property,  being  to  that  extent,  a  taking. 
Glover  v.  Powell,  2  Stockton's  Ch.  211. 

8  Walker  v.  Boston  &  M.  Railw.,  3  Cush.  1 ;  s.  c.  1  Am.  Railw.  C.  462.  Under 
a  colonial  ordinance  of  164  7,  of  Massachusetts,  the  flats  on  creeks,  coves,  and 
arms  of  the  sea,  where  the  tide  ebbs  and  flows,  to  the  extent  of  one  hundred 
rods,  are  appurtenant  to  the  upland,  and  the  owners  of  the  adjoining  land  have 
an  estate  in  fee  therein,  subject  to  the  right  of  the  Commonwealth,  for  making 
public  erections,  which  is  paramount,  and  subject  also  to  such  restraints  and 
limitations  of  the  proprietors'  use  of  them,  as  the  legislature  may  see  fit  to  im- 
pose for  the  preservation  and  protection  of  public  and  private  rights.  Common- 
wealth v.  Alger,  7  Cush.  53.  And  a  similar  custom  or  usage  prevailed  to  some 
extent  in  some  of  the  other  American  colonies,  traces  of  which  will  be  found 
in  some  of  the  more  recent  decisions  in  those  states,  which  have  succeeded  them. 

The  question  of  the  right  of  riparian  owners  along  the  margin  of  the  sea, 
where  the  tide  ebbs  and  flows  upon  sea  flats,  in  the  state  of  Massachusetts,  is 
more  extensively  and  more  learnedly  discussed  in  Commonwealth  v.  Roxbury, 
9  Gray,  451,  and  the  reporter's  note,  by  the  present  Mr.  Justice  Gray  of  the 
Supreme  Judicial  Court,  than  in  any  other  place  within  our  knowledge.  The 
leading  propositions  decided  by  the  case,  are  : 

1.  The  Commonwealth  is  the  owner  in  fee  of  all  channels,  lands  and  flats 
below  low-water  mark,  and  more  than  one  hundred  rods  below  high-water 
mark. 

2.  The  charter  of  the  colony  of  Massachusetts  conveyed  to  the  grantees  all 
public  and  private  rights  in  the  seashore  between  high  and  low-water  mark, 
without  express  words. 

3.  An  order  of  the  General  Court,  that  all  the  ground  lying  between  two  towns 
shall  belong  to  one  of  them,  conveys  no  right,  more  than  one  hundred  rods  be- 
low high-water  mark. 

4.  An  act  granting  permission  to  a  mill  corporation  to  exclude  the  tide  waters 
from  a  portion  of  the  flats,  and  use  it  as  a  basin  for  the  purposes  of  a  mill  power, 
does  not  release  the  title  of  the  Commonwealth  to  such  flats. 

5.  An  act  denning  the  boundary  between  two  towns,  and  recognizing  some 
deviations  from  the  original  or  natural  boundary,  and  some  exchanges  of  terri- 
tory, will  not  imply  any  relinquishment  of  title  on  the  part  of  the  Common- 
wealth. 


330  EMINENT   DOMAIN.  §  78. 

it  is  proper  to  be  considered  by  the  jury  in  estimating  land 
damages  to  such  owners.7  But  the  owner  of  a  tide-mill  has  no 
right  to  have  such  riparian  flats,  as  he  owns,  kept  open  and  un- 
obstructed for  the  free  flow  of  tide-water  to  his  mill. 

6.  The  adjoining  owners  of  such  flats  in  Massachusetts  have 
the  right  to  build  solid  structures  to* a  certain  extent,  and  thus 
obstruct  the  ebb  and  flow  of  the  tide,  if  in  so  doing  they  do  not 
wholly  obstruct  the  access  of  other  proprietors  to  their  houses 
and  lands  ;  and  if  the  mill-owner  and  other  proprietors  suffer 
damage  *  therefrom,  it  is  damnum  absque  injuria?  "  Therefore," 
say  the  court,  "  so  far  as  the  railroad  erected  by  the  legislature 
affected  the  right  of  the  claimants  to  pass  and  repass  to  and  from 
their  lands  and  wharves  with  vessels,  it  was  a  mere  regulation  of 
a  public  right,  and  not  a  taking  of  private  property  for  a  public 
use,  and  gave  no  claim  for  damages." 

7.  The  grant  of  a  railway  "  to  the  place  of  shipping  lumber  " 
on  a  tide-water  river,  justifies  an  extension  across  flats  and  over 
tide-water  to  a  point  at  which  lumber  can  be  conveniently 
shipped.9 

8.  In  a  recent  case  in  the  House  of  Lords,10  it  was  held,  that 
where  a  statute  authorizes  a  company  to  construct  certain  works, 
as  a  harbor,  it  is  to  be  presumed  they  have  power  to  execute  all 
works  incidental  to  their  main  purpose,  and  which  they  deem 
necessary,  provided  they  act  bond  fide. 

9.  Accordingly,  when  public  trustees  for  improving  the  naviga- 
tion of  the  Clyde  were  authorized  by  statute  to  acquire  lands 
adjoining  the  river,  and  to  construct  a  quay,  or  harbor,  and  hav- 
ing acquired  part  of  A.'s  land,  proposed  to  erect  a  large  goods- 
shed  fronting  the  river,  and  between  the  rest  of  A.'s  land  and 

7  Commonwealth  v.  Boston  &  Maine  Railw.,  3  Cush.  25 ;  s.  c.  1  Am.  Railw.  C. 
482;  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58;  s.  C.  1.  Am.  Railw. 
C.  508. 

8  Davidson  v.  Boston  &  M.  Railw.,  3  Cush.  91 ;  s.  C.  1  Am.  Railw.  C.  534. 

9  Peavy  v.  The  Calais  Railw.,  30  Maine  R.  498;  s.  C.  1  Am.  Railw.  C.  147. 
See  also  Babcock  v.  Western  Railw.,  9  Met.  553  ;  s.  c.  1  Am.  Railw.  C.  399. 
So  the  grant  of  a  railway  between  certain  termini,  which  line  passes  over  navi- 
gable rivers,  authorizes  the  company  to  bridge  such  rivers.  Attorney-Gen.  v. 
Stevens,  Saxton,  Ch.  369. 

10  Wright  v.  Scott,  34  Eng.  L.  &  Eq.  1  ;  ante,  §  63. 

*168 


§  78.  ERECTIONS   OVER  NAVIGABLE   WATERS.  331 

the  river,  it  was  held,  that  although  the  statute  gave  no  express 
power  to  erect  sheds,  it  must  be  presumed  that  a  harbor, 
equipped  with  all  the  most  approved  appliances  for  trade,  was 
intended  by  the  legislature,  and  that  therefore  a  power  to  erect 
sheds  was  implied.10 

10.  An  interesting  case  n  has  recently  been  determined  by  the 
*  Supreme  Court  of  Iowa,  in  regard  to  the  important  question, 
to  what  extent  the  large  rivers  in  this  country,  as  the  Mississippi, 
are  to  be  regarded  as  navigable  waters,  above  where  the  tide 
ebbs  and  flows. 

11.  It  is  there  held,  that  all  waters  are  to  be  regarded  as 
navigable,  above  where  the  tide  ebbs  and  flows,  which  are  of 
common  use  to  all  the  citizens  of  the  republic  for  purposes  of 
navigation,  or  that  navigability,  in  fact,  is  to  be  regarded  as  the 
decisive  test,  rather  than  the  ebb  and  flow  of  the  tide.  And  it  is 
here  maintained,  that  the  acts  and  declarations  of  the  United 
States  constitute  the  Mississippi  a  public  highway,  and  that  con- 
sequently the  riparian  proprietors  have  no  interest  in  the  lands 
below  high-water  mark. 

12.  And  where  one,  upon  the  shore  of  a  navigable  stream  or 
arm  of  the  sea,  is  cut  off  by  a  railway  or  other  public  work  from 

11  McManus  v.  Carmichael,  5  Law  Reg.  593.  It  is  maintained  in  this  case, 
with  great  labor  and  research,  that  a  large  number  of  the  states  have  adopted 
similar  views  in  regard  to  their  large  rivers.  See  also  Bowman  v.  Wathen,  2 
McLean's  C.  C.  3  76,  where  the  learned  judge  of  that  circuit  thus  lays  down 
the  law,  in  regard  to  the  shores  of  the  river  Ohio :  "  On  navigable  streams  the 
riparian  right  we  suppose  cannot  extend  generally  beyond  high-water  mark. 
For  certain  purposes,  such  as  the  erection  of  wharves  and  other  structures  for 
the  convenience  of  commerce,  and  which  do  not  obstruct  the  navigation  of  the 
river,  it  may  be  exercised  beyond  this  limit.  But  in  the  present  case  this  in- 
quiry is  not  important.  It  is  enough  to  know  that  the  riparian  right  on  the 
Ohio  River  extends  to  the  water,  and  that  no  supervening  right  over  any  part 
of  this  space  can  be  exercised  or  maintained  without  the  consent  of  the  pro- 
prietor. He  has  the  right  of  fishery,  of  ferry,  and  every  other  right  which  is 
properly  appurtenant  to  the  soil.  And  he  holds  every  one  of  these  rights  by  as 
sacred  a  tenure  as  he  holds  the  land  from  which  they  emanate.  The  state  can- 
not, either  directly  or  indirectly,  divest  him  of  any  one  of  these  rights,  except 
by  a  constitutional  exercise  of  the  power  to  appropriate  private  property  for 
public  purposes.  And  any  act  of  the  state,  short  of  such  an  appropriation, 
which  attempts  to  transfer  any  of  these  rights  to  another,  without  the  consent  of 
the  proprietor,  is  inoperative."     See  also  Lehigh  Valley  Railw.  v.  Trone,  28 

Penn.  St.  206.  .  ,„ 

*  169 


332  EMINENT   DOMAIN.  §  78. 

all  communication  with  the  navigation,  to  the  injury  of  wharves 
or  other  erections  which  the  party  made  upon  his  land,  it  has 
been  held  that  such  person  is  entitled  to  damages  under  the  stat- 
utes allowing  parties  compensation  where  their  estate  is  "  inju- 
riously affected."  12 

13.  And  it  seems  to  be  regarded  as  settled,  that  where  the 
grant  of  any  authority,  by  the  state  legislature,  in  regard  to  nav- 
igable waters,  in  its  exercise  works  an  interference  with  the 
exclusive  power  of  Congress  to  regulate  commerce,  whether 
foreign  or  internal,  such  interference  being  unlawful  is  a  nui- 
sance, and  any  private  person  suffering  special  damage  thereby 
is  entitled  to  an  action  at  law,  or  to  maintain  a  bill  in  equity  for 
a  perpetual  injunction.13 

14.  The  questions  are  very  numerous  which  have  arisen  in  re- 
gard to  the  conflicting  rights  of  different  grantees  affecting  fran- 
chises and  easements  of  different  kinds.  In  a  late  case  in  New 
Hampshire,14  some  questions  affecting  the  construction  of  grants, 
and  reservations  of  this  kind,  are  very  extensively  discussed. 

11  Bell  v.  Hull  &  Selby  Railw.,  6  M.  &  W.  699. 

"  State  of  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  518  ;  s.  c.  18  Id.  421. 
The  same  principle  is  recognized  in  other  cases.  Works  v.  Junction  Railw.,  5 
McLean,  425;  United  States  v.  Railroad  Bridge  Co.,  6  Id.  517. 

When  the  case  of  Pennsylvania  v.  Wheeling  Bridge  Co.  was  last  before  the 
court,  it  was  held,  that  the  paramount  authority  of  Congress,  in  the  regulation 
of  commerce,  included  the  power  to  determine  what  was  an  obstruction  to 
navigation.  And  Congress  having  legalized  the  bridge  of  defendants,  after  the 
judgment  of  the  court  to  abate  it,  but  before  it  was  carried  into  effect,  it  was 
held,  that  the  occasion  for  executing  the  judgment  was  thereby  removed. 
Mr.  Justice  Nelson,  p.  432,  thus  lays  down  the  law,  as  to  streams  under  state 
control :  — 

"  The  purely  internal  streams  of  a  state,  which  are  navigable,  belong  to  the 
riparian  owners  to  the  thread  of  the  stream,"  and  they  have  a  right  to  use  them, 
"subject  to  the  public  right  of  navigation."  "They  may  construct  wharves  or 
dams  or  canals,  for  the  purpose  of  subjecting  the  stream  to  the  various  uses  to 
which  it  may  be  applied,  subject  to  this  public  easement.  But  if  these  struc- 
tures materially  interfere  with  the  public  right,  the  obstruction  may  be  removed 
or  abated  as  a  public  nuisance."  —  "  These  purely  internal  streams  of  a  state, 
as  to  the  public  right  of  navigation,  are  exclusively  under  the  control  of  the 
state  legislature."  And  although  erections  authorized  by  grant  from  the  state 
legislature  cause  "  real  impediment  to  the  navigation,"  they  are  nevertheless 
lawful,  and  the  riparian  owner  has  no  redress.  See  also  Morgan  v.  King,  18 
Barb.  277. 

14  Goodrich  v.  Eastern  Railw.  Co.,  37  New  H.  R.  149. 


§79. 


ERECTIONS  OBSTRUCTING  STREAMS. 


333 


15.  It  seems  to  be  well  settled,  both  in  England  and  in  this 
country,  that  if  there  is  no  legal  authority  for  the  erection  of  a 
pier  in  a  navigable  river,  such  erection  will  become  a  nuisance 
per  se,  and  that  no  evidence  can  be  received  to  show  that  al- 
though illegal  it  will  do  no  harm,  that  question  being  wholly  im- 
material.15 

♦SECTION    XVII. 


Obstruction  of  Streams  by  Company' s  Works. 


1.  Cannot  divert  stream,  without  compensa- 
tion. 

1.  Company  liable  for  defective  construc- 
tion. 

3.  So  also  if  they  use  defective  works,  built 
by  others. 


4.  Company  liable  to  action,  where  mandamus 

will  not  lie. 

5.  Company  liable  for  defective  works,  done 

according  to  their  plans. 

6.  When   a   railway    "cuts   off"    wharves 

from  the  navigation. 


§  79.  1.  In  regard  to  the  obstruction  of  streams,  by  building 
railways,  the  better  opinion  seems  to  be,  that  the  company  are 
bound  to  do  as  little  damage  to  riparian  proprietors  as  is  reason- 
ably consistent  with  the  enjoyment  of  their  grant.1  The  state 
cannot  grant  the  power  to  divert  a  stream  of  water  without 
compensation.2 

2.  Thus  if  by  making  needless  obstructions  in  streams,  in  the 
erection  of  bridges,  or  by  imperfect  or  insufficient  sluices  or 
ducts  for  the  passage  of  streams,  intersected  by  a  railway,  the 
land  or  adjoining  property  is  injured,  the  company  are  liable.3 

3.  So,  too,  the  company  are  liable  to  pay  damages  for  an  injury 
caused  to  the  plaintiff,  by  flowing  his  land  in  a  great  freshet,  in 
consequence  of  their  bridges  damming  up  the  water,  although 
the  bridges  were  erected  by  another  company,  before  the  defend- 
ants' *  company  was  chartered,4  and  there  had  been  no  request 
to  the  defendants  to  remove  the  obstruction.6 

15  The  People  v.  Vanderbilt,  38  Barb.  282. 

1  Boughton  v.  Carter,  18  Johns.  405  ;  Hooker  v.  N.  H.  &  Northampton  Co., 
14  Conn.  R.  146. 

2  Gardner  v.  Newburgh,  2  Johns.  Ch.  162. 

3  Hatch  v.  Vermont  Central  Railw.,  25  Vt.  R.  49  et  seq. ;  Mellen  v.  Western 
Raihv.,  4  Gray,  301  ;  March  v.  C.  &  P.  Railw.,  19  N.  H.  R.  372. 

4  Brown  v.  Cayuga  &  Susquehannah  Railw.,  2  Kern.  486. 

5  Per  Denio,  J.,  2  Kern.  486.     But  the  question  in  regard  to  the  liability  of 

*  170,  171 


334  EMINENT    DOMAIN.  §  79. 

4.  And  where  the  waters  on  certain  lowlands  were  flowed 
back  upon  the  plaintiff's  land,  by  reason  of  insufficient  openings 
in  a  railway  constructed  across  such  lowlands,  it  was  held  that 
the  company  were  liable  to  make  good  the  damages  sustained 
by  plaintiff,  although  no  statute  required  them  to  make  the 
openings,  and  they  could  not  be  compelled  to  do  so  by  writ  of 
mandamus.6  So,  too,  in  regard  to  other  public  works,  if  damage 
accrue  to  others  in  consequence  of  their  imperfect  construction, 
the  proprietors  are  liable,  as  a  municipal  corporation,  for  insuffi- 
cient sewers,  whereby  plaintiff's  factory  was  overflowed  in  a 
freshet,  and  the  property  therein  seriously  injured.7 

5.  In  a  late  case,  where  the  plaintiff's  garden  was  overflowed, 
by  the  manner  in  which  an  excavation  was  made,  in  the  course 
of  construction  of  a  railway  across  a  road,  or  highway,  by  care- 
lessly cutting  into  a  drain,  or  culvert,  and  letting  out  the  water,8 
it  seems  to  have  been  admitted,  on  all  hands,  that  the  company 
would  have  been  liable  for  the  injury  if  it  had  been  done  by  per- 
sons under  their  control,  or  in  accordance  with  the  directions  of 
their  surveyor  or  engineers.8 

6.  And  where  the  plaintiff  owns  a  dock  on  the  east  side  of 
Hudson  River,  on  the  margin  of  a  bay,  under  a  charter  from  the 

the  company  for  continuing  the  obstruction,  -without  notice  to  remove  it,  was 
not  decided  by  the  court.  This  subject,  in  regard  to  the  necessity  of  a  special  re- 
quest, is  somewhat  discussed  in  Norton  v-  Valentine,  14  Vt.  E.  239,  244.  In  Hub- 
bard v.  Russell,  24  Barb.  404,  it  is  held,  that  in  order  to  recover  damages  of 
the  "  continuator  of  a  private  nuisance,  originally  erected  by  another,"  there 
must  be  proof  of  a  request  to  remove  the  same.  But  where  a  railway  company 
bought  up  a  navigation  company,  and  suffered  the  works  of  that  company  to 
fall  to  decay,  so  that  damage  was  suffered  by  a  municipal  corporation,  in  regard 
to  their  harbor,  it  was  held  the  company  were  liable ;  although  only  a  nonfea- 
sance in  form,  it  operated  substantially  as  a  misfeasance,  they  having  maintained 
and  used  the  locks  of  the  navigation  company  in  such  a  state  as  to  cause  the 
injury.     Preston  v.  Eastern  Counties  Railw.,  30  Law  Times,  288. 

6  Lawrence  v.  Great  Northern  Railw.,  4  Eng.  L.  &  Eq.  265  ;  s.  c.  16  Q.  B. 
643,  and  6  Railw.  C  656. 

T  Rochester  White  Lead  Co.  v.  The  City  of  Rochester,  3  Comst.  463.  See 
also  Radcliff  v.  Brooklyn,  4  Comst.  195 ;  Mayor  of  New  York  v.  Furze,  3  Hill, 
612 ;  Bailey  v.  Mayor  of  New  York,  3  Hill,  531. 

8  Steel  v.  Southwestern  Railw.,  32  Eng.  L.  &  Eq.  366.  See  §  1 29,  post,  for  a 
full  statement  of  this  case.  But  there  is  no  liability  incurred  towards  a  mill- 
owner  below,  by  cutting  off  springs,  in  sinking  wells  upon  one's  own  land. 
Chasemore  v.  Richards,  29  Law  Times,  230. 


§80. 


OBSTRUCTION    OF   PRIVATE   WAYS. 


335 


state,  in  1849,  and  the  Hudson  River  Railway,  in  pursuance  of 
its  charter,  granted  in  1846,  constructed  their  road  across  the 
bay,  on  piles,  about  nineteen  hundred  feet  west  of  the  dock,  with 
a  drawbridge  sufficient  to  allow  a  passage  to  such  vessels  as  had 
before  navigated  the  bay,  the  charter  of  the  railway  containing  a 
*  provision,  that  if  any  dock  shall  be  "  cut  off"  by  the  railway, 
the  company  shall  extend  the  same  to  their  road,  it  was  held 
that  this  dock  was  not  "  cut  off,"  within  the  meaning  of  the 
provision.9 

SECTION    XVIII. 

Obstruction  of  Private  Ways. 


1.  Obstruction  of  private  way  matter  of  fact,    3.  But  railway  may  lawfully  pass  along  pub- 

need  not  be  illegal.  t  lie  street. 

2.  Farm  road,  on  one's  own  land,  not  pri- 

vate way. 

§  80.  1.  Where  the  statute  gives  a  right  of  action  against  the 
company,  when  in  the  construction  or  management  of  their 
road  they  shall  obstruct  the  safe  and  convenient  use  of  a  private 
way,  it  was  held  not  necessary  to  the  maintenance  of  the  action 
that  the  railway  should  be  constructed  or  managed  in  an  illegal 
or  improper  manner.1  But  if  the  railway  be  shown  to  have  been 
constructed  and  managed  in  a  proper  manner,  and  a  passage 
over  the  railway  provided  for  the  private  way,  the  court  cannot 
decide,  as  matter  of  law,  whether  the  safe  and  convenient  use  of 
the  way  is  obstructed  or  not.  That  is  a  question  of  fact  to  be 
settled  by  the  jury.2 

2.  But  a  farm  road,  which  the  owner  of  the  land  has  con- 
structed for  the  convenient  use  of  his  farm,  is  not  to  be  regarded 
as  a  private  way,  within  the  meaning  of  a  railway  act.3  A  pri- 
vate way,  within  the  construction  of  the  railway  acts,  is  a  way, 
or  right  of  way,  which  one  man  has  in  the  land  of  another.4 

9  Tillotson  v.  Hudson  River  Raihv.,  15  Barb.  406. 
1  Concord  Railw.  v.  Greely,  3  Foster,  237. 

*  Greenwood  v.  Wilton  Railw.,  3  Foster,  261. 

*  Clark  v.  The  Boston,  Concord,  &  Montreal  Railw.,  4  Foster,  114. 

4  Bliss  v.  Passumpsic  River  Railw.,  Vermont  Sup.  Court,  not  reported. 

*172 


336  EMINENT   DOMAIN.  §  81. 

The  owner  of  a  private  way,  for  the  purpose  of  recovering 
penalties  for  its  obstruction,  is  the  person  who,  for  the  time  be- 
ing, owns  such  road  in  possession.5 

3.  But  it  has  been  held,6  that,  where  the  plaintiff's  right  of 
way  *  in  another's  land  was  obstructed  by  the  passage  of  a  rail- 
way through  the  streets  of  a  town,  in  accordance  with  their 
charter,  no  action  for  damages  could  be  maintained,  and  that  the 
party  could  have  no  redress,  unless  his  case  came  within  the  pro- 
visions of  the  statute  allowing  compensation. 


SECTION    XIX. 
Statute  remedy  Exclusive. 

1.  Remedy  for  land  taken,  exclusively  under  I  4.  Important  ease  in  the  House  of  Lords, 


the  statute. 
2.  But  if  company  do  not  pursue  statute  are 
liable  as  trespassers.     Liable  for  negli- 
gence also. 


5.  Right  at  law  must  be  first  established. 

6.  Where  statute  remedy  fails,  common  law 

remedy  exists. 

7.  The  general  rule  adhered  to  in  America. 


3.   Courts  of  equity  of  en  interfere  by  injunc-    8.    Company  adopting   works  responsible  for 
tion.  amount  awarded  for  land  damages. 

§  81.  1.  It  seems  to  be  well  settled,  notwithstanding  some  ex- 
ceptional cases,  that  the  remedy  given  by  statute  to  land-owners 
for  injuries  sustained  by  taking  land  for  railways,  is  exclusive  of 
all  other  remedies,  and  not  merely  cumulative.1 

6  Mann  v.  Great  Southern  &  Western  Railw.,  9  Ir.  Com.  Law  Rep.  105. 

6  McLaughlin  v.  Charlotte  &  S.  C.  Railw.,  5  Rich.  583.  But  this  decision 
seems  to  rest  upon  the  peculiar  views  of  this  state  upon  that  subject,  that  it  is 
lawful  to  take  private  property  for  public  use  without  compensation,  their  state 
constitution  containing  no  provision  upon  the  subject.  But  the  reported  cases 
in  this  state,  from  the  first,  Dun  v.  City  Council  of  Charleston,  1  Harper,  189 
(1824),  manifest  a  scrupulous  regard  to  the  rights  of  property  owners,  when 
attempted  to  be  interfered  with  for  other  than  strictly  public  purposes.  And 
we  are  not  aware  that  practically,  and  as  a  general  thing,  the  legislature  of  this 
state  have  exercised  the  theoretical  right  which  it  possesses,  of  taking  private 
property  for  public  use  without  compensation.     We  believe  that  is  not  the  fact. 

1  East  and  West  India  Dock  &  Birmingham  Junction  Railw.  Co.  v.  Gattke,  3 

Eng.  L.  &  Eq.  59;   Watkins  v.  Great  Northern  Railw.  Co.,  6  Id.  179  ;   Kimble 

t;.  White  Water  Valley  Canal,  1  Carter,  285  ;  Knorr  v.  Germantown  Railw.  Co.,  1 

Wharton,  256  ;  Mason  v.  Kennebec  &  P.  Railw.  Co.,  31  Maine  R.  215  ;  s.  c.  1  Am. 

*173 


§  81.  STATUTE  REMEDY  EXCLUSIVE.  337 

*  2.    But  if  the  railway  company  have  assumed  to  appropriate 
the  land,  in  violation  of  the  provisions  of  the  statute  to  be  com- 

Railw.  C.  G2;  McCormack  v.  Terre  Haute  &  Richmond  Railw.,  9  Ind.  R.  283. 
But  in  Carr  v.  The  Georgia  Railw.  &  Banking  Co.,  1  Kelly,  524,  it  was  held, 
the  statute  remedy  was  not  exclusive,  but  merely  cumulative.  This  case  pro- 
fesses to  go  upon  the  authority  of  Crittenden  v.  Wilson,  5  Cowen,  165,  where  it 
was  held,  that  the  party  whose  lands  had  been  overflowed,  by  means  of  a  dam 
erected  by  the  authority  of  the  legislature,  which  contained  a  provision  for  esti- 
mating damages  to  land-owners  injured  thereby,  —  might  maintain  an  action 
as  at  common  law.  These  decisions  go  upon  the  principle,  found  in  some  of 
the  elementary  books,  that  a  statutory  remedy  for  what  was  actionable  at  com- 
mon law  is  prima  facie  to  be  regarded  as  cumulative  merely.  It  seems  now  to 
be  the  generally  received  opinion  upon  this  subject,  that  the  statutory  remedy, 
being  more  ample  and  more  specific,  is  ordinarily  to  be  regarded  as  exclusive. 
But  the  settled  difference  of  opinion,  among  the  judges  of  the  Queen's  Bench 
upon  the  subject,  in  Kennett  Nav.  Co.  v.  Withington,  11  Eng.  L.  &  Eq.  472, 
shows  that  the  matter  is  not  quite  settled  in  that  country. 

The  learned  editors  of  the  American  Railway  Cases  have  an  able  and  very 
satisfactory  note  upon  this  subject  in  which  most  of  the  authorities  bearing 
upon  the  point  are  thoroughly  revised.  1  Am.  Railw.  C.  1G6,  167,  168,  169, 
170,  171. 

In  Aldrich  v.  The  Cheshire  Railw.,  1  Foster,  359;  s.  c.  1  Am.  Railw.  C.  206, 
it  is  held,  that  the  statute  remedy  is  exclusive  of  all  others.  So  also  in  Troy  v. 
The  Cheshire  Railw.,  3  Foster,  83,  it  is  held,  that  the  statute  remedy  must  be 
followed,  as  far  as  it  extends,  but  if  it  only  extend  to  part  of  the  injury  occa- 
sioned, the  party  may  have- his  action  at  common  law  for  the  residue. 

But  where  a  railway  company  are  ordered  to  make  and  maintain  a  private 
way,  for  the  benefit  of  a  party,  and  fail  to  comply,  the  appropriate  remedy  is 
the  one  pointed  out  in  the  statute.  White  v.  Boston  &  Prov.  Railw.,  6  Cush. 
420.  And  where  the  statute  provides  no  specific  remedy  in  such  a  case,  an  ac- 
tion on  the  case  will  lie  probably  upon  general  principles. 

But  in  a  late  English  case,  Ambergate,  Nott.  &  Boston  &  E.  J.  Railw.  v.  Mid- 
land Railw.,  22  Eng.  L.  &  Eq.  289,  where  the  statute  gives  a  penalty  for  one 
company  running  its  engines  upon  the  track  of  another  company,  without  first 
having  obtained  the  requisite  certificate  of  approval  of  the  engines  by  the  sec- 
ond company,  it  was  held,  that  this  did  not  take  away  the  common-law  right 
of  seizing  the  engines,  while  upon  their  track,  damage  feasant.  And  having 
made  the  distress  upon  the  engine,  while  so  unlawfully  on  their  track,  and  the 
first  company  having  demanded  its  surrender,  after  it  had  been  removed  off  the 
defendants'  line,  with  the  declared  purpose  of  using  it  again  in  the  same  way  ; 
that  such  demand  was  illegal,  and  the  defendants  justified  in  not  acceding  to  it. 
See  also,  in  confirmation  of  the  general  proposition  of  the  text,  New  Albany  & 
Salem  Railw.  v.  Connelly,  7  Porter  (Ind.),  32;  Leviston  v.  Junction  Railw., 
Id.  597;  Lebanon  v.  Olcott,  1  N.  H.  R.  339;  Victory  v.  Fitzpatrick,  8  Ind.  R. 
281.     See,  also,  Colcough  v.  The  Nashville  &  N.  W.  Railw.  Co.,  2  Head,  171 ; 

VOL.  I.  22  *174 


338  EMINENT   DOMAIN.  §  81. 

plied  with  on  their  part,  their  acts  are  ordinarily  to  be  regarded 
as  trespasses  ;  and  where  they  have  acquired  the  right  to  the  use 
of  the  land,  but  have  omitted  some  duty  imposed  by  the  statute, 
or  where  they  have  been  guilty  of  negligence,  or  want  of  skill,  in 
the  exercise  of  their  legal  rights,  they  make  themselves  liable  to 
an  action  upon  the  case  at  common  law.2 

3.  And  the  courts  of  equity  will  in  many  cases  interfere  by 
injunction,  where  railway  companies  are  proceeding  to  take  land 
contrary  to  the  provisions  of  the  act  of  parliament.3 

4.  In  the  House  of  Lords,  in  a  recent  case,4  this  principle  is 

Brown  v.  Beatty,  34  Miss.  R.  227;  Indiana  Central  Railw.  Co.  v.  Oakes,  20 
Ind.  R.  9. 

3  Watkins  v.  Great  Northern  Railw.  Co.,  6  Eng.  L.  &  Eq.  179  ;  Dean  v.  Sulli- 
van Railw.  Co.,  2  Foster,  316  ;  s.  c.  1  Am.  Railw.  C.  214  ;  Mayor  of  Lichfield  v. 
Simpson,  8  Ad.  &  Ellis  (n.  s.),  C5  ;  Furniss  v.  Hudson  River  Railw.  Co.,  5  Sand. 
S.  C.  R.  551 ;  Turner  v.  Shef.  &  Rotherham  Railw.,  10  M.  &  W.  425.  In  this 
last  case,  the  injury  complained  of  was,  the  obstruction  of  ancient  lights  by  the 
erection  of  the  company's  station-house,  done  under  the  act ;  and  the  dust,  &c, 
drifted  from  the  station-house  and  embankment  into  the  plaintiff's  house.  The 
plaintiff's  house  not  being  upon  the  schedule  attached  to  the  bill,  the  company 
had  no  right  under  the  act  to  take  it,  or  injuriously  to  affect  it.  So  that  the 
parties  stood  as  at  common  law.  See  also  Shand  v.  Henderson,  2  Dowl.  P.  C. 
519;  Davis  v.  London  &  Blackwall  Railw.,  2  Railw.  C.  308. 

3  Stone  v.  Commercial  Railw.,  1  Railw.  C.  375;  Lord  Chancellor  in  Manser 
v.  N.  &  E.  Railw.  Co.,  2  Railw.  C.  380,  391  ;  Priestly  v.  Manchester  &  L.  Railw. 
Co.,  2  Railw.  C.  134  ;  London  &  Birmingham  Railw.  Co.  v.  Grand  Junction  Ca- 
nal Co.,  1  Railw.  C.  224.  In  this  case,  as  well  as  the  next  preceding,  it  is  said 
the  company  is  to  be  the  judge  of  the  most  feasible  mode  of  carrying  forward 
its  own  operations,  and  is  not  liable  to  be  called  to  account  for  the  exercise  of 
this  discretion,  so  long  as  they  act  bond  fide,  and  with  common  prudence. 

But  it  affords  no  just  ground  of  equitable  interference,  that  the  special  tribu- 
nal, provided  by  statute  to  have  exclusive  jurisdiction  of  certain  claims,  is  alto- 
gether incompetent  to  decide  such  questions  as  naturally  arise.  If  any  such  de- 
fect exists,  the  legislature  alone  can  afford  redress.  Barnsley  Canal  Co.  v.  Twi- 
bill,  3  Railw.  C.  471. 

Nor  is  the  land-owner  entitled  to  maintain  a  common-law  action,  because  he 
refused  to  join  in  the  proceedings  under  the  statute,  the  company  having  pro- 
ceeded ex  parte,  and  caused  an  appraisal,  and  deposited  the  sum  awarded  for 
compensation.  Hueston  v.  Eaton  &  II.  Railw.,  4  Ohio  St.  G85.  See  also  The 
Western  Maryland  Railw.  Co.  v.  Owings,  15  Md.  R.  199;  Sturtevant  v.  Milw. 
Wat.  &  B.  Railw.  Co.,  11  Wise.  R.  61 ;  Powers  v.  Bears,  12  Wise.  R.  213;  Da- 
vis v.  La  Crosse  &  Milw.  Railw.  Co.,  Id.  16  ;  Burns  v.  Milw.  &  Miss.  Railw.  Co., 

Wise.  R.  450. 

*  Imperial  Gas  Light  &  Coke  Co.  v.  Broadbent,  5  Jur.  N.  S.  1319. 


§  81.  statute  remedy  exclusive.  339 

very  extensively  discussed,  although  not  arising  in  the  case  of  a 
railway,  or  where  the  land  itself  was  proposed  to  be  taken.  But 
here  the  injury  complained  of  was,  that  the  company's  works,  in 
the  manner  in  which  they  had  been  carried  on,  rendered  the 
respondent's  land  useless.  This  was  done  by  means  of  the  gas 
escaping  from  the  company's  works  deadening  the  life  of  vegeta- 
tion, the  respondent  being  a  market  gardener.  The  respondent 
had  brought  an  action  against  the  company  for  the  nuisance, 
which,  by  agreement,  upon  the  suggestion  of  the  court,  had  been 
referred  to  an  arbitrator,  who  had  reported  damages,  as  having 
accrued  in  the  mode  complained  of,  to  a  considerable  extent. 
The  company  were  now  proceeding  to  make  a  very  extensive  ad- 
dition to  their  works,  when  the  respondent  obtained  an  injunc- 
tion against  them,  which,  upon  final  hearing  before  the  chancellor, 
assisted  by  the  common-law  judges,  had  been  made  perpetual,5 
and  the  question  was  then  appealed  by  the  company  into  the 
House  of  Lords. 

5.  It  was  here  held,  affirming  the  decision  below,  that  in  such 
case  the  plaintiff  in  equity  cannot  claim  a  perpetual  injunction, 
until  his  right  is  first  established  at  law.  But  this  was  sufficient- 
ly done  in  the  present  case,  by  the  award  of  the  arbitrator.  But 
after  the  right  is  once  established  at  law,  it  is  the  province  of 
the  equity  judge  to  determine  how  far  the  cause  of  complaint 
may  have  been  removed  by  any  subsequent  alteration  of  the 
works  ;  and  this  question  will  not  be  referred  to  a  trial  at  law. 

6.  It  was  also  held  here  that  the  respondent  had  no  remedy 
under  the  statute,  and  consequently,  although  such  statutory 
remedy  to  its  extent  was  necessarily  exclusive  of  all  others, 
yet  where  the  wrong  done  is  not  authorized  by  these  powers,  the 
common-law  right  of  action  still  remained.6 

7.  The  general  principle  that  the  statute  remedy,  as  far  as  it 
extends,  is  exclusive,  seems  to  be  universally  adhered  to  in  the 
American  courts,  with  slight  modifications,  some  of  which  are, 

6  s.  c.  before  V.  C.  Wood,  2  Jur.  N.  S.  1132;  before  the  Chancellor,  3  Id. 
221. 

6  See  the  following  cases  cited  in  argument :  Hole  v.  Barlow,  4  C.  B.  (N.  S.), 
334 ;  Attorney-General  v.  The  Sheffield  Gas  Consumers'  Co.,  3  De  G.  M.  &  G. 
304;  Same  v.  Nichol,  16  Vesey,  33S;  Wynstanley  v.  Lee,  2  Swanst.  333; 
Haines  v.  Taylor,  10  Beavan,  75. 


340 


EMINENT    DOMAIN. 


§82. 


and  some  are  not,  perhaps,  entirely  consistent  with  the  mainte- 
nance of  the  general  rule." 

8.  It  was  held  in  one  case,  where  the  land  damages  had 
been  assessed  under  the  statute,  and  judgment  rendered  for  the 
amount  against  the  company,  that  a  subsequent  company,  formed 
by  the  mortgagees  of  the  first  company,  were  responsible  for  the 
amount  of  such  judgment,  if  they  continued  to  operate  the  road 
and  use  the  right  of  way  for  which  the  judgment  was  rendered.8 
But  this  seems  a  considerable  stretch  of  construction,  although 
eminently  just  and  reasonable. 


♦SECTION    XX, 


Lands  injuriously  affected. 


1.  Obstruction  of  way,  loss  of  custom. 

2.  Equity  will  not  enjoin  legal  right. 

3.  Liable  for  building  railway,  so  as  to  cut 

off  wharf. 

4.  Not  liable  for  crossing  highway  on  level. 

5.  English  statute  only  includes  damages,  by 

construction. 

6.  Equity  will  not  enjoin  a  doubtful  claim. 

7.  Damages  unforeseen,  at  the  time   of  the 

appraisal,  may  be  recovered,  in   Eng- 
land. 

8.  Injuries  to  ferry,  and  towing-path,  com- 

pensated. 


9,  10.  Remote  injuries  not  within  the  statute. 

1 1 .  Damages   compensated,  under  statute  of 

Massachusetts. 

12.  Damages  not  compensated,  as  being  too 

remote. 

13.  For  negligence  in  construction,  remedy  at 

common  law. 

14.  Or  neglect  to  repair. 

1 5.  Recovery  under  the  statute,  SfC. 

16.  Possession  by  railway,  notice  of  extent  of 

title. 

17.  Railways  have  right  to  exclusive  posses- 

sion of  roadway. 


§  82.  1.  The  right  of  a  party  to  claim  consequential  damages, 
where  his  land  was  not  taken,  but  only  injuriously  affected,  was 
very  thoroughly  discussed  by  Lord  Truro,  Chancellor,  in  a  late 
case,1  where  the  defendant,  a  furrier,  claimed  damage,  in  conse- 
quence of  the  dust  and  dirt,  occasioned  by  the  company,  having 
injured  his  goods,  and  that  his  customers  had  been  compelled, 
by  the  obstruction  caused  by  the  company's  works,  to  quit  the 

T  Pettibone  v.  La  Crosse  &  Milw.  Railw.  Co.,  14  Wise.  R.  443 ;  Vilas  v.  Milw. 

&  Miss.  Railw.  Co.,  15  Id.  233. 

8  Pfeifer  v.  Sheboygan  &  Fond  du  Lac  Railw.  Co.,  18  Wise.  R.  155. 

1  East  &  W.  I.  Docks  &  Birmingham  Junction  Railw.  Co.  v.  Gattke,  3  Eng. 

L.  &  Eq.  59. 

*  175 


§  82.  LANDS   INJURIOUSLY   AFFECTED.  341 

side  of  the  road  upon  which  the  defendant's  shop  was  situated, 
before  they  arrived  at  that  point,  and  cross  the  street  to  get 
along,  by  reason  whereof  he  had  lost  custom.  The  defendant 
also  claimed  that  the  company  had  obstructed  a  passage  to  his 
buildings,  by  which  he  had  an  entrance  to  the  back  part  of  his 
premises. 

But  where  the  railway  company  lowered  a  highway  several 
feet,  thereby  greatly  obstructing  access  to  plaintiff's  dwelling,  and 
obliging  him  to  make  use  of  a  ladder  for  that  purpose,  it  was 
held  that  no  claim  could  be  maintained  under  that  clause  in  the 
statute  for  injuriously  affecting  land,  the  injury  complained  of 
being  one  of  a  permanent  nature,  and  therefore  the  subject  of 
compensation  under  the  general  provision  for  land  damages.2 
But  where  the  works  of  a  railway  intercepted  water  which  would 
have  percolated  through  the  strata  of  the  earth  into  plaintiff's 
well,  and  also  drained  off  water  which  had  reached  the  well  by 
such  percolation  : 3  It  was  held  the  land-owner  had  no  remedy 
either  under  the  statute  or  at  common  law. 

*  2.  This  case  was  an  application,  by  the  company,  for  an  in- 
junction to  restrain  the  party  from  proceeding  under  the  statute, 
and  the  court  held,  that  as  the  party  had  a  clear  legal  right, 
under  the  act  of  parliament,  they  could  not  be  deprived  of  pursu- 
ing it  in  the  mode  pointed  out,  and  fully  affirmed  the  views  of 
Lord  Denman,  Ch.  J.,  in  Regina  v.  Eastern  Counties  Railway 
Company,4  where  the   damage  claimed  was  by  lowering  a  road 

2  Moore  v.  Great  Southern  &  Western  Railw.  Co.,  10  Ir.  Com.  Law  Rep. 
46,  in  Exch.  Ch.  S.  P.  Tuohey  v.  Same,  Id.  98.  But  the  English  courts  seem 
to  consider  that  compensation  in  such  a  case  may  be  given  under  the  provision 
for  damages  where  land  is  injuriously  affected.  Chamberlain  v.  West  End  of 
London  &  C.  Railw.,  8  Jur.  N.  S.  935. 

3  New  River  Co.  v.  Johnson,  6  Jur.  N.  S.  374,  Q.  B.  This  question  is  a  good 
deal  discussed  in  a  later  case,  Reg.  v.  Met.  Board  of  Works,  3  B.  &  S.  710, 
where  it  was  held  that  the  railway  company  were  not  responsible  for  under- 
ground currents  of  water  intercepted  by  their  works,  either  at  common  law  or 
under  the  statute. 

4  2  Ad.  &  Ellis  (n.  s.),  347.  See  post,  §  99.  In  this  case  the  court  held 
that  the  injuries  complained  of  clearly  came  within  the  act,  and  Lord  JJenman, 
in  closing  his  opinion,  makes  a  very  significant  reply  to  a  class  of  arguments, 
not  uncommon  upon  all  subjects.  "  Before  we  conclude,  we  shall  briefly  ad- 
vert to  an  argument  much  pressed  upon  us ;  that  if  we  make  this  rule  abso- 
lute, any  injury  to  land,  at  any  distance  from  the  line  of  railway,  may  become 

*  176 


342  EMINENT   DOMAIN.  §  82. 

upon  which  the  land  abutted,  so  as  to  impede  the  entrance  to  the- 
land,  and  compel  the  owner  to  build  new  fences. 

3.  The  construction  of  a  railway  across  flats,  in  front  of  plain- 
tiff's wharf,  gives  him  a  right  to  damage  under  the  statute  of 
Massachusetts,  although  the  wharf  itself  remained  uninjured.5 
But  the  charter  of  a  railway  company  having  authorized  them 
to  make  certain  specified  erections  between  the  chanels  of  two 
rivers,  and  such  erections  having  so  changed  the  currents  of  the 
rivers  as  to  render  more  sea-wall  necessary  to  secure  certain 
wharves  and  flats  in  the  vicinity,  it  was  held  that  the  damage 
thereby  occasioned  was  damnum  absque  injuria? 

4.  One  cannot  claim  damage  of  a  railway  company,  by  reason 
of  their  track  crossing  a  public  highway,  near  his  dwelling,  upon 
a  level,  the  highway  being  the  principal  approach  to  his  grounds.7 

5.  In  a  recent  English  case,8  it  is  held  that  the  English  statute, 
giving  compensation,  where  lands  are  injuriously  affected,  was 
intended  to  include  only  such  damages  as  were  caused  by  the 
erection  of  the  company's  works,  and  not  such  as  might  in 
future  *  be  caused  by  the  use  of  the  works,  this  being  the  case  of 
Gas  Works,  and  the  68th  section  of  the  Lands  Clauses  Acts 
being  made  a  part  of  the  company's  special  act.  But  this  cer- 
tainly could  not  extend  to  the  ordinary  use  of  a  railway,  which 
is  the  only  or  the  principal  mode  of  injuriously  affecting  lands 
not  taken,  and  which  could  be  as  strictly  estimated,  at  the  time 
of  the  company's  works  being  erected,  as  from  time  to  time 
thereafter. 

G.   In  a  recent  case,9  where  the  lessee  of  an  inn  and  premises, 

the  subject  of  compensation.  If  extreme  cases  should  arise,  we  shall  know  how 
to  deal  with  them ;  but  in  the  present  instance,  the  alleged  injury  is  to  land  ad- 
joining a  road,  which  has  been  'lowered'  under  the  provisions  of  the  act,  and 
which  is  therefore  land  injuriously  affected,  by  an  act  expressly  within  the  pow- 
ers conferred  by  the  company." 

5  Ashby  v.  The  Eastern  Railw.  Co.,  5  Met.  368;  s.  c.  1  Am.  Railw.  C.  356. 
And  in  Bell  i>.  The  Hull  &  Selby  Railw.,  2  Railw.  C.  279,  a  similar  decision  is 
made  under  the  English  statute. 

•  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.  3  Cush.  58 ;  s.  c.  1  Am.  Railw. 
C.  508  ;  Ante,  §  75. 

7  Caledonian  Railw.  v.  Ogilvy.  29  Eng.  L.  &  Eq.  22. 

8  Law  Times,  February,  1857,  p.  329,  not  yet  reported  in  this  country. 

•  The  London  &  N.  W.  Railw.  Co.  v.  Bradley,  6  Railw.  C.  551. 

*  177 


§  82.  LANDS   INJURIOUSLY   AFFECTED.  343 

situated  near  a  tunnel  on  the  company's  road,  claimed  damages, 
because  the  vibration  caused  by  the  trains  prevented  him  keep- 
ing his  beer  in  the  cellar  in  a  fit  state  for  his  customers,  and  the 
value  of  the  house  was  thereby  lessened,  being  rendered  unfit 
for  a  public-house  ;  and  the  plaintiffs  moved  for  an  injunction  to 
restrain  the  defendant  from  proceeding  to  assess  damages  under 
the  statute  ;  the  Lord  Chancellor  denied  the  motion,  upon  the 
ground  that  the  remedy  at  law  was  altogether  adequate.  But 
his  lordship  intimated  a  very  decided  opinion,  that  no  such 
damages  could  be  recovered.  He  says,  "  Whether  an  action  will 
lie  on  behalf  of  a  man  who  sustains  a  private  injury,  by  the  exer- 
cise of  parliamentary  powers,  done  judiciously  and  cautiously, 
is  not  an  easy  question,  or  rather  it  is  not  easy  to  come  to  the  con- 
clusion that  an  action  will  lie.  I  entertain  a  decided  opinion, 
(probably  however  erroneous,)  that  no  such  action  will  lie."10 

7.  And  where  the  plaintiff's  damages  for  land  taken  by  the 
company,  and  by  severance  and  otherwise,  were  determined  by 
an  arbitrator,11  but  from  the  road  being  built  across  certain  flats, 
with  insufficient  openings,  the  waters  became  dammed  up  and 
injured  the  plaintiff's  remaining  lands,  it  was  held,  he  was  en- 
titled to  recover  "  as  for  an  unforeseen  injury,  arising-  from  the 
manner  in  which  the  railway  was  constructed."  But  it  is  here 
said,  "  The  *  company  might,  by  erecting  their  works  with  proper 
caution,  have  avoided  the  injury."  It  seems  this  is  the  only 
ground  of  an  action. 

8.  In  a  doubtful  case  the  court  issued  an  alternative  manda- 
mus and  required  a  return  of  the  facts.12    So,  too,  a  party  whose 

10  Hatch  v.  Vermont  Central  Railw.  Co.,  25  Vt.  R.  49 ;  s.  c.  28  Id.  142. 

11  Lawrence  v.  Great  N.  Railw.  Co.,  6  Railw.  C.  65G  ;  s.  c.  4  Eng.  L.  &  Eq. 
265  ;  ante,  §  79,  n.  6  ;  §  74,  n.  7  ;  L.  &  Y.  Railw.  v.  Evans,  19  Eng.  L.  &  Eq.  295. 
Under  most  of  the  American  statutes,  the  damages,  as  well  prospective  as  pres- 
ent, must  be  assessed  at  once,  and  no  recovery  can  be  had  for  unforeseen  in- 
jury, more  than  in  any  case  of  a  recovery  of  damages  for  a  tort.  But  in  the 
case  of  Lancashire  &  Y.  Railw.  v.  Evans,  it  is  obvious,  from  the  elaborate  review 
of  the  case  by  the  Master  of  the  Rolls,  that  the  English  courts  now  regard  the 
land-owner  as  entitled  to  make  new  claims,  from  time  to  time,  as  they  occur,  for 
any  injurious  consequence  of  the  construction  of  the  works.  For  any  unlawful 
act,  in  the  construction  or  use  of  the  works,  an  action  at  common  law  is  the 
proper  remedy. 

12  Queen  v.  The  North  Union  Railw.  Co.,  1  Railw.  C.  729. 

*178 


344  EMINENT   DOMAIN.  §  82. 

ferry  has  been  materially  lessened  in  value,  by  obstructing  ac- 
cess to  it,  may  recover  damages  of  the  company  under  the  stat- 
ute.13 So,  too,  if  a  towing-path  be  obstructed,  or  the  navigation 
diverted  from  it,  the  owner  under  a  similar  statute  may  have 
compensation.14  So,  too,  an  occasional  flooding  of  lands,  caused 
by  a  proper  execution  of  parliamentary  powers,  is  within  the 
remedy  given  by  statute.15 

9.  Some  questions  under  this  head  have  arisen,  in  regard  to 
mines  and  minerals,  not  of  sufficient  importance  to  be  stated  in 
detail.16  Where  the  damage  resulted  from  the  company  turning 
a  brook,  the  court  ordered  a  mandamus.17  But  brewers,  accus- 
tomed to  take  water  from  a  public  river,  are  not  entitled  to  re- 
ceive compensation  when  the  waters  were  deteriorated  by  the 
works  of  a  dock  company.18 

10.  It  was  held  that  a  tithe-owner  is  not  entitled  to  compen- 
sation unless  the  act  contain  an  indemnity  in  his  favor.19  The 
interest  of  a  tithe-owner  is  too  remote  and  incidental  to  be  the 
subject  of  general  indemnity.  It  often  forms  the  basis  of  special 
statutory  provisions  for  indemnity. 

13  In  re  Cooling,  19  Law  J.  Q.  B.  25;  s.  c.  Hodges  on  Railways,  277.  It  is 
said  here  that  a  ferry  is  different  from  a  public-house,  whose  custom  is  said  to 
be  injured  by  obstructing  the  travel  and  access  to  the  house,  by  cutting  through 
thoroughfares  leading  to  it,  which,  it  has  been  held,  is  no  ground  of  claiming 
damage  under  a  similar  statute.  The  King  v.  The  London  Dock  Co.,  5  Ad.  & 
Ell.  163.  But  this  case  is  considered  as  overruled  by  Reg.  v.  The  Eastern 
Counties  Railw.  Co.,  2  Q.  B.  347;  Chamberlain  v.  East  End  of  London  & 
Crys.  Pal.  Railw.  Co.,  8  Jur.  N.  S.  935. 

14  The  King  v.  Commis.  of  Thames  &  Isis,  5  Ad.  &  Ell.  804. 

15  Ware  v.  Regents  Canal  Co.,  3  De  G.  &  Jones,  212. 

16  Fenton  v.  Trent  &  Mersey  Nav.  Co.,  9  M.  &  W.  203  ;  Cromford  Canal  Co. 
v.  Cutts,  5  Railw.  C.  442  ;  The  King  v.  Leeds  &  Selby  Railw.  Co.,  3  Ad.  & 
Ell.  683. 

17  Reg.  v.  North  Midland  Railw.  Co.,  2  Railw.  C.  1. 

18  The  King  v.  Bristol  Dock  Co.,  12  East,  429.  But  where  mines  below  the 
company's  works  are  injured  in  consequence  of  the  negligent  or  imperfect  mode  of 
constructing  or  maintaining  the  company's  structures  and  cuttings,  the  person  so 
injured  may  maintain  a  common-law  action  against  the  company.  Bagnall  v.  Lon- 
don &  N.  W.  Railw.,  7  H.  &  N.  423.  Affirmed  in  Exchequer  Chamber,  31  Law 
J.  480.  See  also  Reg.  v.  Fisher,  3  B.  &  S.  191 ;  s.  c.  9  Jur.  N.  S.  571 ;  Elliot 
v.  Northeastern  Railw.  Co.,  9  Jur.  N.  S.  555  ;  s.  c.  10  Ho.  Lords  Cas.  333. 

19  Rex.  v.  The  Commissioners  of  Nene  Outfall,  9  B.  &  C.  875;  London  & 
Blackwall  Railw.  Co.  v.  Letts,  3  H.  L.  Cases,  470  ;  Hodges  on  Railways,  289, 
n.  (m) ;  8  Eng.  L.  &  Eq.  1. 


§  82.  LANDS  INJURIOUSLY  AFFECTED.  345 

11.  Iii  a  recent  well-considered  case,  the  rule  in  regard  to 
what  damage  is  to  be  included  under  the  terms  "  lands  injuri- 
ously affected,"  or  equivalent  terms,  is  thus  laid  down :  "  All 
direct  *  damage  to  real  estate  by  passing  over  it,  or  part  of  it, 
or  which  affects  the  estate  directly,  although  it  does  not  pass 
over  it,  as  by  a  deep  cut  or  high  embankment,  so  near  lands  or 
buildings  as  to  prevent  or  diminish  the  use  of  them,  by  endan- 
gering the  fall  of  buildings,  the  caving  of  earth,  the  draining  of 
wells,  the  diversion  of  water-courses,"  by  the  proper  erection 
and  maintenance  of  the  company's  works.  "  Also,  as  being  of 
like  character,  blasting  a  ledge  of  rocks  so  near  houses  or  build- 
ings as  to  cause  damage  ;  running  a  track  so  near  as  to  cause 
imminent  and  appreciable  danger  by  fire  ;  obliterating  or  ob- 
structing private  ways  leading  to  houses  or  buildings,"  —  all 
these  and  some  others,  doubtless,  are  included. 

12.  "  But  that  no  damage  can  be  assessed  for  losses  arising 
directly  or  indirectly  from  the  diversion  of  travel,  the  loss  of 
custom  to  turnpikes,  canals,  bridges,  taverns,  coach  companies, 
and  the  like  ;  nor  for  the  inconveniences  which  the  community 
may  suffer  in  common,  from  a  somewhat  less  convenient  and 
beneficial  use  of  public  and  private  ways,  from  the  rapid  and 
dangerous  crossings  of  the  public  highways,  arising  from  the 
usual  and  ordinary  action  of  railroads,  and  railroad  trains,  and 
their  natural  incidents."20 

13.  It  is  held  also  in  this  case,  that  no  damages  can  be  assessed 
under  the  statute,  for  cutting  through  a  watercourse  in  making 
an  embankment  without  making  a  culvert,  whereby  the  water  is 
made  to  flow  back  and  injure  the  plaintiff's  land,  at  a  distance 

20  Proprietors  of  Locks  &  Canals  v.  Nashua  &  Lowell  Railw.,  10  Cush.  385. 
Shaw,  Ch.  J.  (391,  392).  Nor  is  the  party,  whose  lands  lie  near  a  railway  line, 
entitled  to  compensation,  for  being  injuriously  affected,  by  persons  in  the  trains 
overlooking  the  grounds,  thus  rendering  them  less  comfortable  and  secluded,  for 
the  walks  of  the  family  and  visitors.  Nor  can  the  party  claim  compensation  for 
vibration  of  the  ground  caused  by  the  use  of  the  road,  the  statute  only  extending 
to  damages  caused  by  the  construction  of  the  works.  Reg.  v.  Southeastern 
Railw.,  in  re  Penny,  7  Ellis  &  Black.  660,  ante  pi.  5.  But  actual  injury  dur- 
ing the  construction  of  a  railway,  by  vibration  caused  by  the  ballast  trains,  is 
to  be  compensated ;  but  by  Campbell,  Ch.  J.,  it  is  said  such  vibration  caused  by 
running  trains  after  the  road  is  completed  will  merit  a  different  consideration. 
lb.     See  also  Croft  v.  London  &  N.  W.  Railw.  Co.,  3  B.  &  S.  436. 

*  179 


346  EMINENT   DOMAIN.  §  82. 

from  the  railway,  no  part  of  which  is  taken,  the  remedy  being  by 
action  at  common  law.20 

14.  And  where  the  company,  by  consent  of  the  land-owner, 
enters  upon  the  land  and  makes  the  requisite  erections,  which  are 
subsequently  conveyed  to  them  with  the  land  by  the  land-own- 
ers, it  was  held  such  grantor  is  not  estopped  from  claiming  dam- 
ages resulting  from  want  of  proper  care  and  skill  in  constructing 
the  works,  or  from  neglect  to  keep  them  in  repair.21 

15.  The  rule  of  the  English  courts  that  damages  can  only  be 
recovered  for  injuriously  affecting  land,  where  but  for  the  stat- 
ute the  act  complained  of  would  be  just  ground  of  action  at  com- 
mon law,  does  not  apply  where  part  of  the  land  is  taken  and 
damages  are  sought,  not  only  for  the  part  taken  but  for  the  rest 
of  the  land  being  injuriously  affected,  either  by  severance  or 
otherwise.22  And  it  was  here  held  that  the  owner  of  a  mill  was 
entitled  to  have  damages  assessed  to  him  for  the  increased  ex- 
posure of  the  same  to  fire  by  the  passage  of  the  company's  trains. 
But  loss  of  trade  caused  by  the  operations  of  the  company  dur- 
ing the  construction  of  their  works  is  not  damages  for  which 
the  party  is  entitled  to  compensation.23  But  a  person  may  claim 
damages  on  the  ground  of  being  injuriously  affected  on  account 
of  the  obstruction  or  diversion  of  a  public  way  by  the  construc- 
tion of  the  works  of  a  railway.24 

16.  The  owners  of  land  adjoining  a  railway  track  are  affected 
with  presumptive  notice  of  the  rights  of  the  company  from  long 
use,  the  same  as  in  regard  to  other  owners  in  possession.25  And 
equity  will  enjoin  an  adjoining  owner  to  a  railway  track  against 
making  erections  which  will  interfere  with  the  company  repair- 
ing its  track.26 

21  MQrris  Canal  &  Banking  Company  v.  Ryerson,  3  Dutcher,  457  ;  Water- 
man v.  Conn.  &  Pass.  Riv.  Railw.,  30  Vt.  R.  G10  ;  Lafayette  Plank  Road  Co.  v. 
New  Albany,  &c.  Railw.,  13  Ind.  R.  90. 

22  S.  T.  &  A.  Railw.  Co.,  in  re,  10  Jur.  N.  S.  614. 

23  Senior  v.  Met.  Railw.  Co.,  2  H.  &  C.  258,  Cameron  v.  Charing-Cross  Railw. 
Co.,  16  C.  B.  N.  S.  430  ;  overruled  in  Exch.  Ch.,  Ricket  v.  Same  Co.,  13  W.  R. 
455,  where  the  proposition  of  the  text  is  established. 

24  Wood  v.  Stourbridge  Railw.  Co.,  1G  C.  B.  N.  S.  222.  See  also  Boothby  v. 
Androscoggin  &  K.  Railw.  Co.,  51  Me.  R.  318. 

25  Macon  &  Western  Railw.  Co.  v.  McConnell,  27  Ga.  R.  481. 

26  Cunningham  v.  Rome  Railw.  Co.,  27  Ga.  R.  499. 


§83. 


DIFFERENT   ESTATES   PROTECTED. 


347 


17.  It  seems  scarcely  needful  to  repeat  what  has  heen  so  often 
declared  by  the  courts,  that  railways  have  the  exclusive  right  to 
possession  of  their  roadway,  and  to  exclude  all  intrusions  there- 
on, whether  from  persons  or  structures.27 


♦SECTION    XXI. 


Different  Estates  protected. 


1.  Tenant's  good-will  and  chance  of  renewal 

protected. 

2.  Tenants  entitled  to  compensation  for  change 

of  location. 

3.  Church   property   in   England,  how   esti- 

mated. 

4.  Tenant  not  entitled  to  sue,  as  owner  of  pri- 

vate way. 

5.  Heir  should  sue  for  compensation. 

6.  Lessor  and  lessee   both   entitled  to   com- 

pensation. 


7.  Right  of  wag,  from  necessity,  protected. 

8.  Mill-owner  entitled  to  action  for  obstruct- 

ing water. 

9.  Occupier  of  land  entitled  to  compensa- 

tion. 

10.  Tenant,    ivtthout    power    of  alienation, 

forfeits  his  estate,  by  license  to  com- 
pany. 

11.  Damages   not   transferable   by   deed   of 

land,  after  they  accrue. 


§  83.  1.  The  English  statute  provides  for  the  protection  of 
the  interests  of  lessees  in  certain  cases.1  And  lessees  from  year 
to  year  have  recovered,  for  the  good-will  of  the  premises,  which 
would  have  been  valuable  as  between  the  tenant  and  a  pur- 
chaser, although  it  was  not  a  legal  interest  as  against  the  land- 
lord.2 But  not  when  the  tenancy  was  from  year  to  year,  de- 
terminable at  three  months'  notice,  with  a  stipulation  against 
underletting  without  leave.2  So,  too,  an  under-tenant  is  entitled 
to  compensation  for  good-will.3  But  in  a  lease  for  fourteen  years, 
with  covenant  to  yield  up  the  premises  at  the  end  of  the  term, 
with  all  fixtures  and  improvements,  where  the  company  suffered 
the  lease  to  expire  and  then  turned  out  the  tenant,  held  that  he 
was  entitled  to  compensation  for  good-will  and  the  chance  of 

57  Railw.  Co.  v.  Hummell,  44  Penn.  St.  375;    Harvey  v.  Lackawanna  &  B. 
Railw.  Co.,  47  Id.  428. 

1  8  &  9  Vict,  c.  18,  §§  119  to  122,  and  8  &  9  Vict.  c.  20,  §  43. 

2  Ex  parte  Farlow,  2  B.  &  Ad.  341  ;  The  Matter  of  Palmer  v.  Hungerford 
Market,  9  Ad.  &  Ellis,  463. 

3  Rex  v.  The  Hungerford  Market,  4  B.  &  Ad.  592. 

*180 


348  EMINENT   DOMAIN.  §  83. 

beneficial  renewal,  but  not  for  improvements,  but  nevertheless 
these  might  be  considered  by  the  jury  in  estimating  the  chance 
of  beneficial  renewal.4 

2.  The  loss  which  a  brewer  sustained  by  having  to  give  up 
his  business  till  he  could  procure  other  premises,  suitable  for 
carrying  it  on,  was  held  a  proper  subject  of  compensation  under 
a  similar  statute.5  Where  the  act  required  tenants  from  year 
to  year  to  give  up  premises  to  the  company,  upon  six  months' 
notice  to  quit,  *  without  reference  to  the  time  when  their  term 
began,  but  allowed  them  compensation,  if  required  to  leave  be- 
fore their  term  expired,  it  was  held,  that  when  the  six  months' 
notice  required  the  tenant  to  leave  at  the  end  of  his  term,  he 
was  not  entitled  to  compensation.6  But  where  a  tenant  gives 
up  premises  under  a  six  months'  notice  from  a  railway  com- 
pany, when  he  is  entitled  to  compensation,  without  demanding 
it  of  the  company,  he  is  still  bound  to  pay  full  rent  to  his  land- 
lord.7 

3.  Church  property  in  England  is  estimated  with  reference 
to  the  cost  of  a  new  site  and  similar  erections,  to  be  fixed  by 
agreement  between  the  company  and  the  diocesan  and  arch- 
bishop of  the  province.  But  after  this  appropriation  of  the  site 
of  a  church  to  secular  purposes,  the  rector  is  entitled  to  have 
his  interest  in  the  premises  connected  therewith  estimated  at  its 
value  for  secular  uses.8 

4.  Where  the  charter  of  a  company  imposed  a  penalty  upon 
them  for  any  obstruction  or  interruption  of  a  road,  and  in  the 
case  of  a  private  road  gave  the  right  to  recover  the  penalty  to 
the  owner  of  the  road,  it  was  held,  that  the  tenant  of  the  farm 
over  which  the  road  passed  could  not  sue  for  the  penalty.9 

5.  Where  land  of  a  deceased  person  is  taken  for  a  railway, 

4  Rex  v.  The  Hungerford  Market,  4  B.  &  Ad.  592.  But  the  ease  of  Rex  v. 
Liv.  &  Manchester  Railw.,  4  Ad.  &  Ellis,  650,  seems  to  treat  a  similar  estate  as 
absolutely  gone,  at  the  end  of  the  term,  and  the  company  bound  to  make  no 
compensation. 

5  Jubb  v.  Hull  Dock  Co.,  9  Ad.  &  Ellis  (x.  s.),  Q.  B.  443. 

6  The  Queen  v.  London  &  Southampton  Raihv.  Co.,  1  Railw.  C.  717. 

7  AYainwright  v.  Ramsden,  1  Railw.  C.  714. 

8  Hilcoat  v.  The  Archbishops  of  Canterbury  &  York,  10  C.  B.  327. 

9  Collinson  v.  Newcastle  &  Darlington  Railw.,  1  Car.  &  Kir.  546. 

*  181 


§  83.  DIFFERENT   ESTATES   PROTECTED.  349 

the  heir  and  not  the  administrator  is  entitled  to  the  damages 
for  such  taking,  and  to  prosecute  for  the  recovery  thereof,  al- 
though the  administrator  had  previously  represented  the  estate 
insolvent,  and  afterwards  obtained  a  license  to  sell  the  real  es- 
tate for  the  payment  of  debts.10 

6.  And  a  tenant,  whose  lease  began  before,  and  who  was  in 
possession  at  the  time  an  injury  was  done,  is  entitled  to  recover 
damages  for  an  injury  sustained  by  him,  in  building  a  turn- 
pike road.11  But  the  lessor  and  lessee  are  each  entitled  to 
recover  compensation  for  the  damage  sustained  by  them  respec- 
tively.12 

7.  And  where  the  plaintiff  had  no  access  to  his  land  except 
over  the  land  of  his  grantor,  it  was  held,  that  he  had  a  way,  by 
*  necessity,  across  such  land,  and  that  he  was  entitled  to  main- 
tain an  action  against  a  railway  company  for  obstructing  it.13 

8.  So  also  where  the  free  flow  of  water  from  a  saw-mill  is 
obstructed  by  the  erection  of  a  railway  bridge  below  the  mill, 
the  company  are  liable  to  the  owner  of  the  mill  in  an  action  of 
tort.14  But  they  are  not  liable  for  any  increased  expense  thereby 
occasioned  to  the  mill-owner,  in  getting  logs  up  the  stream  to 
his  mill,  whether  the  stream  be  navigable  for  boats  and  rafts,  or 
not.14 

9.  Where  the  statute  gives  remedy  against  all  persons  inter- 
ested, the  occupant  of  land  is  liable  to  be  effected  by  the  proceed- 
ings, and  a  similar  construction  will  prevail  where  the  remedy  is 
given  to  all  interested.15 

It  seems  indispensable  to  the  asserting  of  any  valid  claim  for 
land  damages  that  the  claimant  prove  the  character  and  extent 

10  Boynton  v.  Peterboro  &  Shirley  Railw.,  4  Cush.  467. 

11  Turnpike  Road  v.  Brosi,  22  Perm.  St.  29. 

12  Parks  v.  City  of  Boston,  15  Pick.  198.  See  also  Burbridge  v.  New  Albany 
&  S.  Railw.,  9  Ind.  R.  546. 

13  Kimball  v.  The  Cocheco  Railw.,  7  Fost.  448. 

14  Blood  v.  Nashua  &  Lowell  Railw.,  2  Gray,  137. 

15  Gilbert  v.  Haverrneyer,  2  Sand.  506.  The  term  "  owner"  in  a  statute  requir- 
ing compensation  by  railway  companies  for  land  taken  by  them  includes  every 
person  having  any  title  to  or  interest  in  the  land,  capable  of  being  injured  by  the 
construction  of  the  road,  and  extends  to  the  interest  of  a  lessee  or  termor.  Bait. 
&  Ohio  Railw.  v.  Thompson,  10  Md.  R.  76;  Lewis  v.  Railw.,  11  Rich.  91; 
Sacramento  Railw.  v.  Moffatt,  7  Cal.  R.  577. 

*182 


350  EMINENT   DOMAIN.  §  84. 

of  his  title.16  And  it  is  here  said  that  possession  alone  will  not 
be  regarded  as  ground  of  presumption  of  title  in  fee.  And 
where  the  entire  fee  in  the  land  is  condemned  to  the  use  of  the 
railway,  and  the  money  paid  into  court,  it  must  be  apportioned 
to  the  several  owners  of  different  interests  in  the  land,  as  nearly 
as  possible,  as  if  it  were  the  land  itself.  And  the  same  result 
will  follow  where  a  permanent  right  of  way  is  given  in  any  form 
to  a  perpetual  corporation.17 

10.  And  where  a  tenant,  who  held  the  land  for  a  term  of  years, 
with  a  strict  clause  against  alienation  or  subletting,  assigned  a 
small  portion  to  a  railway,  for  a  temporary  purpose,  the  company 
not  dealing  with  the  landlord,  or  giving  him  any  compensation 
for  the  use  of  the  land,  it  was  held,  that  he  was  entitled  to  main- 
tain ejectment  against  the  company,  and  his  tenant,  for  the  for- 
feiture incurred  by  this  subletting.18 

11.  And  the  damages  assessed  are  payable  to  the  owner  of  the 
land  at  the  date  of  the  adjudication,  and  do  not  pass  by  deed  to  a 
subsequent  purchaser.19  And  where  the  company  gave  notice  to 
treat  for  land  to  a  tenant  at  will,  and  were  allowed  to  take  pos- 
session and  complete  their  line,  a  person  who  had  subsequently 
purchased  an  undivided  ^portion  of  the  land  was  not  allowed  to 
maintain  a  bill  to  restrain  the  company  from  the  use  of  the 
land.20 

SECTION    XXII. 

Arbitration. 

1.  Attorney,  without  express  power,  may  re-  I  2.  Award    binding,   unless    objected    to    in 
ftr  disputed  claim.  court. 

§  84.  1.  It  was  held  that  an  attorney,  who  had  no  authority 
under  seal,  either  to  defend  or  refer  suits,  might  nevertheless 
make  a  valid  reference  of  a  disputed  claim  against  the  company, 
under  a  judge's  order.1 

15  Robbins  v.  Milw.  &  Horricon  Railw.  Co.,  6  Wise.  R.  636. 

17  Ross  v.  Adams,  4  Dutcher,  160. 

18  Legg  v.  Belfast  &  Bellamy  Railw.,  1  Irish  Law  (x.  s.),  124,  n. 
10  Lewis  v.  Wilm.  &  Manchester  Railw.,  11  Rich.  Law,  91. 

40  Carnochan  v.  Norwich  &  Spalding  Railw.,  26  Beav.  169. 

1  Faviell  v.  The  Eastern  Counties  Railw.,  2  Exch.  344.    It  is  held  generally, 


§85. 


ARBITRATION.  —  STATUTE    OF   LIMITATIONS. 


351 


*  2.  And  if  the  company  object  that  the  arbitrator  awarded 
upon  matters  not  submitted,  he  should  have  applied  to  the 
court  to  revoke  the  submission,  or  set  aside  the  award,  upon  its 
return  into  court ;  but  not  having  done  so,  the  claim  being  set 
up  and  entertained  by  the  arbitrator,  the  award  is  binding.1 
The  same  principles  would  probably  obtain  in  the  American 
courts. 

SECTION    XXIII. 
Statute  of  Limitations. 


1.  General  limilation  of  actions  applies   to 

kind  claim. 

2.  Filing  petition  will  not  save  bar. 


3.  Acquiescence  of  forty  years  by  land-owner, 

effect  of. 

4.  The  estoppel  xvill  take  effect  if  the  use  is 

clearly  adverse. 


§  85.  1.  Where  neither  the  general  statutes  or  the  special  act 
contain  any  specific  limitation,  in  regard  to  claims  upon  railway 
companies  for  land  damages,  it  has  been  held  that  the  general 
statute  of  limitation  of  actions,  for  claims  of  a  similar  character, 
will  apply.  And  where  the  claim  was  for  an  injury  to  an  island, 
caused  by  the  erection  of  a  railway  bridge,  and  to  the  award  of 
the  viewers,  the  company  plead  actio  non  infra  sex  annos,  the 
plea  was  held  good.1 

2.  And  where  the  statute  provides,  that  no  process  to  recover 
compensation  for  land  or  property  taken  by  a  railway  shall  "  be 
sustained,  unless  made  within  three  years  from  the  time  of  taking 
the  same,"  a  mere  filing  of  an  application  with  the  clerk  of  the 
county  commissioners,  without  bringing  it  to  the  notice  of  the 
commissioners,  or  any  action  of  theirs  thereon  until  the  three 
years  have  elapsed,  will  not  save  the  bar  of  the  statute.2 

in  the  English  courts,  that  an  attorney  should  be  appointed  under  seal  to  prose- 
cute and  defend  suits,  on  the  part  of  corporations.  Thames  Haven  Dock  & 
Railw.  Co.  v.  Hall,  5  Man.  &  G.  274  ;  Arnold  v.  The  Mayor  of  Poole,  4  Id.  860. 
But  when,  by  the  incorporation  of  a  railway  company,  the  directors  were  em- 
powered to  appoint  and  displace  any  of  the  officers  of  the  company,  the  appoint- 
ment of  an  attorney,  by  the  company,  need  not  be  under  seal.     See  post,  §  141. 

1  Forster  v.  The  Cumberland  Valley  Railw.,  23  Penn.  St.  371. 

2  Charles  lliver  Railw.  v.  County  Commissioners  of  Norfolk,  7  Gray,  389. 

*183 


352  EMINENT   DOMAIN.  §  85. 

Tho  land-owner  may  also  traverse  the  right  of  the  company  to 
take  the  land,  either  originally,  for  the  location  and  construction 
of  their  road,  on  the  ground  that  it  does  not  come  within  their 
line,  or  the  line  of  deviation  from  the  prescribed  route,  or  that 
they  have  not  taken  the  proper  preliminary  steps,  or  for  any 
other  cause  ;  or,  *  when  the  company  propose  to  change  their 
route,  or  to  enlarge  their  accommodation  works,  on  the  ground 
of  having  made  their  exclusive  election  in  one  case,  or  the  want 
of  necessity  in  the  other.3 

3.  Where  the  land-owner  had  allowed  the  company,  upon  an 
appraisal  in  the  alternative  stating  both  the  value  of  the  land 
and  of  the  annual  use,  to  occupy  the  same  for  the  purposes  of  a 
canal,  for  more  than  forty  years,  paying  an  annual  sum  about 
the  same  which  had  been  awarded,  the  award  being  defective  in 
law,  in  that  no  person  had  been  made  a  party  to  the  proceeding 
who  was  authorized  to  represent  the  land-owner,  who  was  an  in- 
fant, as  it  was  held  that  this  was  no  ground  of  presuming  a  con- 
tract on  the  part  of  the  land-owner  to  convey  the  land  in  fee  in 
consideration  of  a  rent  charge.4  But  it  was  held  that  an  eject- 
ment on  the  part  of  the  land-owner,  and  the  erection  of  a  bridge 
by  him,  ought  to  be  restrained  by  injunction,  on  the  ground  of 
acquiescence,  the  company  undertaking  to  put  in  force  their  par- 
liamentary powers  which  had  not  expired,  and  thus  obtain  the 
land. 

4.  But  in  another  case,  where  the  party  had,  by  contract  with 
the  original  land-owner,  used  the  land  of  others  for  more  than 
fifty  years,  first  for  a  tram-way  and  subsequently  for  a  railway  in 
a  different  place  across  the  same  land,  it  was  held  that  the  pres- 
ent land-owner  was  concluded  by  the  agreement,  and  that  the 
change  of  one  place  for  another  would  not  defeat  the  estoppel.5 
All  the  party  can  claim  is,  to  have  damages  under  the  statute.5 

»  South  Carolina  Railw.  v.  Blake,  9  Rich.  228  ;  ante,  §  72;  post,§  105,  n.  14. 
4  Somerset  Canal  Co.  v.  Harcourt,  2  De  G.  &  J.  596. 
6  Mold  v.  Wheatcroft,  29  Law  J.  Ch.  ch.  11 ;  s.  c.  27  Beav.  510. 
*184 


§  86.     COMPANY   BOUND   TO   PURCHASE   WHOLE   OF   HOUSE,   ETC.     353 


CHAPTER    XII. 


REMEDIES   BY   LAND-OWNERS   UNDER   THE   ENGLISH    STATUTE. 


SECTION    I. 


Company  bound  to  purchase  the  whole  of  a  House,  etc. 


1.  The  company  to  take  the  accessories  ivith 

the  house. 

2.  But  the  owner  has  an  election  in  regard  to 

that. 

3.  A  deposit  of  the  appraised  value  means 

the  value  of  all  the  company  are  bound  to 
take. 

4.  Company  bound  to  take  all  of  which  they 


take  part,  and  pay  special  damage  be- 
sides. 

5.  Where  company  desire  part,  not  compella- 

ble to  take  whole  unless  they  persist  in 
taking  part. 

6.  Land  separated  from  house  by  highway  not 

part  of  premises. 


§  86.  1.  By  the  English  statute,1  railway  companies  are  bound 
to  purchase  the  whole  of  a  house  and  lands  adjoining,  if  required, 
when  they  give  notice  to  take  part ;  and  also  if  the  house  or  the 
principal  portion  of  it  be  within  fifty  feet  of  the  railway,  and 
deteriorated  by  it.  The  act  includes  house,  garden,  yard,  ware- 
house, building,  or  manufactory  ;  but  it  was  considered  that 
this  did  not  extend  to  a  lumber-yard.2  Under  a  similar  provis- 
ion, in  a  special  charter,  it  was  held,  that  the  company  were  not 
bound  to  take  the  entire  premises,  where  the  principal  dwelling- 
house  only  was  within  the  prescribed  limit.3 

2.  It  has  been  considered  that  this  statute  gave  an  option  to 
the  land-owner,  whether  the  company  should  take  the  whole  or 
part  of  the  house,  so  situated.4     And  in  this  last  case  it  was 

1  8  &  9  Vict.  ch.  18,  §  92. 

2  Stone  v.  Commercial  Raihv.,  9  Simons,  621 ;  s.  c.  1  Railw.  C.  375;  Reg.  v. 
Sheriff  of  Middlesex,  3  Railw.  C.  396. 

8  Reg.  v.  L.  &  Greenw.  Railw.  Co.,  3  Railw.  C.  138. 

4  Sparrow  v.  The  Oxford,  Worcester,  &  Wolverhampton  Railw.  13  Eng.  L.  & 
Eq.  33.  By  Lord  Cramcorth  and  Sir  Knight  Bruce,  L.  J.  See  also  Barker  v.  N. 
Staffordshire  Railw.,  5  Railw.  C.  401,  419,  where  Lord  Cotlenham,  Chancellor, 
intimates  an  opinion,  that  certain  parcels  of  land  (and  a  brine-pit  and  steam- 
engine  upon  one  of  them)  adjoining  salt-works,  are  not  a  part  of  the  manufac- 

VOL.  I.  23  *667 


354       REMEDIES   BY   LAND-OWNERS   UNDER  ENGLISH   STATUTE.      §  86. 

held,  that  *  a  narrow  strip  of  land  adjoining  an  iron  and  tin- 
plate  factory,  which  had  been  used  as  a  place  of  deposit  for  rub- 
bish, and  over  which,  a  person  had  a  right  of  way,  was  such  a 
part  of  the  manufactury,  that  the  company  were  bound  to  take 
the  whole.4 

3.  And  the  statute  requiring  a  deposit  of  the  appraised  value 
of  the  land  taken  by  a  railway  company,  before  entering  upon  the 
same,  imports  the  value  of  the  whole  premises,  in  all  cases  where 
the  company  give  notice  of  requiring  part  and  the  owner  elects, 
according  to  the  terms  of  the  statute,  that  they  shall  take  the 
whole.5 

4.  Where  three  adjoining  houses  had  gardens  laid  out  from 
the  plat  of  land  upon  which  they  were  built  for  the  accommoda- 

tory.  But  his  lordship  gives  a  very  satisfactory  reason  for  denying  the  aid  of 
the  court,  viz.,  "  That  a  party  having  known  his  rights,  and  having  had  his 
claim,  in  respect  of  them,  disposed  of  [upon  the  original  bill,  and  by  leave  of 
court  then  filing  a  supplemental  bill],  if  he  then  raises  a  new  ground  of  equity, 
does  not  present  his  case  in  a  form  to  entitle  him  to  ask  for  the  extraordinary 
interposition  of  this  court." 

In  Sparrow  v.  The  Oxford,  &c.  Railw.  Co.,  13  Eng.  L.  &  Eq.  33,  Lord 
Cranworth,  L.  J.,  made  some  very  significant  suggestions  in  regard  to  the  rights 
of  land-owners  to  compensation.  "  The  only  remaining  question,"  said  his  lord- 
ship, "  is  one  which  has  been  raised  now  for  the  first  time,  namely,  that  if  they 
cannot  take  the  land,  they  are  now  entitled  to  burrow  under  it,  as  it  were  to 
make  a  tunnel,  which  they  say  they  are  able  and  willing  to  do,  without  taking  or 
touching  any  part  of  the  surface.  It  was  argued  in  this  way,  '  Suppose  the 
manufactory  were  at  the  top  of  a  hill,  and  you  were  burrowing  under  it,  at  the 
distance  of  a  thousand  feet,  are  they  then  taking  part  of  the  manufactory  ?'  I 
do  not  feel  myself  called  upon  to  answer  that  question,  but  if  I  were,  I  rather 
believe  you  are,  on  the  principle  of  the  maxim,  Cujus  est  solum,  ejus  est  usque  ad 
inferos.  Do  you  mean  to  say,  that  if  you  are  an  inch  below  the  surface,  you 
would  not  be  taking  any  part  of  the  manufactory  ?  I  am  inclined  to  think  that 
however  deep  below  [the  tunnel  was  made,]  it  would  be  within  the  enactment. 
If  that  has  been  a  casus  omissus,  I  think  it  ought  to  be  construed  in  a  way  most 
favorable  to  those  who  are  seeking  to  defend  their  property  from  invasion."  In 
the  case  of  Ramsden  v.  The  Manchester  S.  Junction  Railw.,  1  Exch.  723,  it 
•was  determined,  that  a  railway  company  could  not  tunnel,  even  a  highway,  with- 
out first  making  compensation  to  the  owner  of  the  freehold,  under  the  Land 
Clauses  Act.  The  company  are  not  bound  to  take  property  more  than  fifty  feet 
from  the  centre  line  of  the  road,  unless  it  is  incapable  of  separation.  Queen  v. 
London  &  G.  Railw.,  3  Ad.  &  Ell.  (n.  s.)  166. 

*  Underwood  v.  The  Bedford  &  Cambridge  Railw.,  7  Jur.  N.  S.  941  ;  Dadson 
v.  East  Kent  Railw.     lb. 
*668 


§  86.     COMPANY   BOUND   TO   PURCHASE   WHOLE   OF   HOUSE,   ETC.     355 

tion  of  each,  and  a  railway  company  propose  to  take  a  strip  o 
land  from  the  gardens  attached  to  two  of  the  houses  upon  the 
side  most  remote  from  the  houses,  and  the  owner  elected  to  have 
the  company  take  the  houses,  which  they  declined  to  do,  but 
took  the  land  ;  the  company  were  held '  liable  to  purchase  the 
whole  of  the  two  houses,  the  gardens  being  part  of  the  houses 
to  which  they  were  attached,  and  that  they  were  also  liable  to 
make  compensation  for  any  injury  sustained  in  respect  of  the 
other  house.6 

5.  It  has  also  been  determined,  that  the  railway,  after  giving 
notice  to  purchase  part  of  a  house,  &c,  and  being  required  by 
the  owner  to  take  the  whole,  cannot  be  compelled  by  manda- 
mus to  take  the  whole,  as  the  act  of  parliament  imposes  no  such 
obligation.  The  statute  is  intended  to  protect  the  owner  from 
being  compelled  to  sell  a  part,  but  does  not  compel  a  company, 
wanting  a  part  only,  to  take  the  whole,  if  they  chose  to  waive 
their  claim  altogether,  and  the .  mandamus  having  claimed  the 
whole,  could  not  go  for  a  part  only.7 

6.  The  plaintiff  was  an  owner  in  fee  of  a  house  on  one  side  of 

9  Cole  v.  Crystal  Palace  Railw.,  5  Jur.  N.  S.  1114 ;  s.  c.  27  Beav.  242.  The 
term  "  house  "  in  the  statute  includes  all  that  would  pass  by  the  same  word  in 
an  ordinary  conveyance.  Hewson  v-  London  &  S.  W.  Railw.  Co.,  8  W.  It.  467; 
Ferguson  v.  Brighton  &  S.  C.  Railw.,  9  L.  T.  N.  S.  134 ;  s.  c.  30  Beav.  100.  It 
will  therefore  embrace  all  of  a  series  of  gardens  connected  by  a  gravel  walk  pass- 
ing through  the  walls  of  the  different  gardens.  lb.  See  King  v.  Wycombe 
Railw.,  6  Jur.  N.  S.  239  ;  s.  c.  28  Beav.  104.  A  hospital  may  compel  a  railway 
company  to  take  the  whole  of  the  hospital  if  they  insist  upon  takino-  one  wine 
used  for  the  same  purposes  as  the  rest  of  the  building,  although  connected  only 
by  a  wall.  St.  Thomas  Hospital  v.  Charing-Cross  Railw.  Co.,  7  Jur.  N.  S.  256. 
Houses  in  the  course  of  construction  come  within  the  statute.  Alexander  v.  Crystal 
Palace  Railw.,  8  Jur.  N.  S.  833 ;  s.  c.  30  Beav.  556.  See  also  Chambers  v.  London, 
Chatham,  &  Dover  Railw.,  8  L.  Times,  N.  S.  235.  Land  used  for  purposes  of  pas- 
time, as  archery  and  dancing,  but  chiefly  as  a  pasture  for  cows,  although  impor- 
tant to  the  enjoyment  of  the  house,  is  not  so  a  part  of  the  same  premises  as  to 
require  the  company  to  take  it  with  the  house  or  the  house  with  that.  Pullin"-  v. 
London,  Chatham,  &  Dover  Railw.  Co.,  10  Jur.  N.  S.  665  ;  s.  c.  33  Beav.  644. 

7  Queen  v.  The  London  &  S.  W.  Railw.  Co.,  5  Railw.  C.  669.  The  remark 
of  Lord  Denman,  in  closing  his  opinion  in  this  case,  is  applicable  to  similar  cases 
everywhere.  "  We  have  to  lament  the  waste  of  time  that  has  occurred,  from 
the  obscurity  thrown  about  the  case  by  the  superfluous  matter  foisted  into  the 
record." 


356        REMEDIES  BY   LAND-OWNERS   UNDER   ENGLISH   STATUTE.      §  87. 

a  high  road,  -where  he  had  resided  for  a  great  number  of  years. 
Some  years  ago  he  purchased  six  acres  of  land  on  the  other  side 
of  the  road,  upon  part  of  which  there  were  built  three  houses. 
Two  of  the  houses  were  let  to  tenants,  the  third  house  was  occu- 
pied by  the  plaintiff's  groom,  and  other  servants,  the  rest  of  the 
land  which  lay  beyond  the  houses  was  used  by  the  plaintiff  for 
pasturing  his  cows,  horses,  &c.  The  plaintiff  alleged  that  the 
six  acres  were  indispensable  to  the  enjoyment  of  the  houses  by 
him.  A  railway  wanting  part  of  the  six  acres  which  lay  about 
250  yards  from  the  plaintiff's  house,  the  plaintiff  sought  to  com- 
pel the  company  to  take  the  house  also,  on  the  ground  that  the 
land  formed  part  of  his  house,  within  the  92d  section  of  the 
Act.  But  the  motion  for  injunction  having  been  denied  by  the 
Vice-Chancellor,  Wood,  his  judgment  was  affirmed  in  the  Court 
of  Chancery  Appeal,  Lord  Justice  Knight  Bruce  dubitante.8 


♦SECTION    II. 

The  Company  compellable  to  take  intersected  Lands,  and  the 
Owner  to  sell. 

» 

1 .    When  less  than  half  an  acre  remains  on    2.  Owner  must  sell  where  land  of  less  value 
either  side,  company  must  buy.  than  railroad  crossing. 

3,  4.    Word  "  town  "  how  construed. 

§87.  1.  By  the  93d  section  of  the  English  statute  the  com- 
pany is  compellable  to  take  lands,  not  in  a  town,  or  built  upon, 
which  are  so  intersected  by  the  works  as  to  leave  either  on 
one  or  both  sides  a  less  quantity  of  land  than  half  a  statute 
acre. 

2.  And  by  section  94,  if  the  quantity  of  land  left  on  either  side 
of  the  works a  is  of  less  value  than  a  railway  crossing,  and  the 
owner  have  not  other  lands  adjoining,  and  require  the  promo- 

•  Steele  v.  Midland  Railw.,  12  Jur.  N.  S.  218. 

1  8  and  9  Vict.  ch.  18,  §  93  and  94 ;  Falls  v.  Belfast  &  B.  Railw.,  11  Irish  L.  R. 
184.  This  statute  does  not  apply  to  lands  in  a  town  or  built  upon.  Marriage 
v.  The  Eastern  Go's.  R.  and  the  London  &  B.  Railw.,  30  Law  Times,  264 ;  s.  C. 
9  Ho.  Lds.  32,  where  the  judgment  of  the  Excheq.  Ch.  2  H.  &  N.  649  is  reversed, 
and  the  statute  held  to  apply  to  all  intersected  lands,  whether  in  a  town  or  not. 
*669 


§  88.  NOTICE   TO   TREAT   FOR   PURCHASE   OF  LAND.  357 

ters  to  make  the  crossing,  the  owner  may  he  compelled  to  sell 
the  land. 

3.  It  was  held,  that  the  term  "  town,"  in  a  turnpike  act,  im- 
ported a  "  collection  of  houses,"  and  that  the  extent  of  the  town 
was  to  be  determined  by  the  popular  sense  of  the  term,  and  to 
include  all  that  might  fairly  be  said  to  dwell  together.2 

4.  And  in  another  case,  it  is  said,  that  the  term  includes  all 
the  houses,  which  are  continuous,  and  that  this  includes  all  open 
spaces  occupied,  as  mere  accessories  to  such  houses.3 


SECTION    III. 

Effect  of  Notice  to  Treat  for  the  purchase  of  Land. 

1.  Important  question  under  statute  of limita-    5.  Subsequent  purchasers  affected  by  notice 

tions.  to  treat  as  the  inception  of  title. 

2.  Company  compelled  to  summon  jury. 

3.  Ejectment  not  maintainable  against  com- 

pany. 

4.  Powers  to  purchase  or  enter,  how  saved. 


6.  But  the  notice  may  be  withdrawn  before 
anything  is  done  under  it. 

7.  Not  indispensable  to  declare  the  use,  or  that 
it  is  for  station,  and  another  company  to 

participate  in  use. 


§  88.  1.  Inasmuch  as  the  time  for  taking  land,  by  the  English 
statute,  is  limited  to  three  years,  an  important  question  has 
arisen  there,  in  regard  to  the  effect  of  instituting  proceedings, 
by  giving  notice  to  treat,  within  the  time  limited,  although  not 
in  season  to  have  the  matter  brought  to  a  close  before  its  expi- 
ration. 

2.  This  having  been  done,  and  the  land-owner  having  inti- 
mated his  desire  that  a  jury  should  be  summoned,  but  the  com- 
pany taking  no  further  steps,  the  question  was  whether  a  writ  of 
mandamus  would  lie,  after  the  prescribed  period  had  elapsed,  to 
compel  *the  company  to  proceed  to  summon  a  jury.  It  was  de- 
termined in  the  affirmative.1 

2  Reg.  v.  Cottle,  3  Eng.  L.  &  Eq.  474  ;  s.  c.  1G  Q.  B.  412. 

3  Elliott  v.  South  Devon  Railw.,  2  Exch.  725. 

1  The  Queen  v.  Birmingham  &  Oxford  Junction  Railw.,  6  Railw.  C.  C28  ; 
Birmingham  &  Oxford  June.  Railw.  Co.  v.  Regina,  4  Eng.  L.  &  Eq.  276,  where 
the  judgment  of  the  Q.  B.  was  fully  affirmed  in  the  Exchequer  Chamber.  The 
court  say,  "  The  notice  to  treat  is  an  inchoate  purchase,  and  after  that  has  been 

*670 


358       REMEDIES   BY  LAND-OWNERS   UNDER   ENGLISH  STATUTE.      §  88. 

3.  So,  too,  where  the  company  have  taken  possession  of  land, 
by  depositing  the  value  of  the  land  in  the  Bank  of  England,  and 
executing  a  bond  to  the  party  to  secure  payment,  subject  to 
future  proceedings,  as  they  may  do,  and  where  the  company 
took  no  further  steps  to  ascertain  the  sum  to  be  paid  by  them, 
as  compensation,  until  the  time  limited  for  exercising  their  com- 
pulsory powers  had  expired,  it  was  held,  that  having  rightfully 
entered  upon  the  land  before  the  expiration  of  the  prescribed 
period,  an  ejectment  could  not  be  maintained  against  them  after 
that  period.  The  proper  remedy  for  the  land-owner  is  by  writ 
of  mandamus.2 

4.  So,  too,  if  they  have  made  the  deposit,  and  given  a  bond 
for  the  payment  of  the  price,  under  this  same  section,3  a  day  be- 

given,  in  due  time,  it  is  competent  for  the  land-owner  to  compel  the  completion 
of  the  purchase."  But  where  an  annuitant,  having  power  to  enter  upon  land 
and  distrain  for  his  security,  was  served  with  notice  by  a  railway  company  of 
their  intention  to  purchase,  and  the  company  subsequently  purchased  the  prop- 
erty of  a  prior  mortgagee,  who  had  a  power  of  sale,  it  was  held  the  annuitant 
could  not,  in  equity,  compel  the  company  to  pay  the  owners  of  the  annuity,  he 
alleging  no  fraud  or  other  improper  conduct  on  the  part  of  the  company.  Hill 
v.  Great  N.  R.,  27  Eng.  L.  &  Eq.  198,  reversing  the  decision  of  one  of  the  vice- 
chancellors  in  s.  c.  23  Eng.  L.  &  Eq.  5G5.  See  also  Met.  Railw.  Co.  v.  Wood- 
house,  11  Jur.  N.  S.  296.  If  the  land-owner  lie  by  an  unreasonable  time,  he 
cannot  maintain  mandamus,  or  where  the  company  abandon  their  notice  to  take 
part  of  land  upon  the  owner  serving  notice  to  take  the  whole.  Quicke  ex  parte, 
13  YV.  R.  924. 

2  Doe  d.  Armistead  v.  The  N.  Staffordshire  Railw.,  4  Eng.  L.  &  Eq.  216.  The 
expression  "  deviation,"  which  appears  in  the  acts  of  parliament  and  in  the  Eng- 
lish cases,  is  here  determined  to  import  the  distance  from  the  line  of  railway 
upon  the  parliamentary  plans  which  are  the  basis  of  the  charter,  and  one  hun- 
dred yards  "  deviation  "  is  commonly  allowed,  in  the  acts.  Worsley  v.  The  South 
Devon  Railw.  Co.,  Id.  223.  See  also  Lind  v.  Isle  of  Wight  Ferry  Co.,  7  L.  T. 
N.  S.  416.  The  courts  will  restrain  the  company  within  the  limits  of  deviation 
allowed  by  the  act,  even  where  the  plans  deposited  contain  no  limitation.  Hig- 
ley  v.  Lan.  &  Y.  Railw.  Co.,  4  Gr.  352.  The  line  of  deviation  controls  the  right 
rather  than  the  delineations  on  the  plan.  Weld  v.  So.  Western  Railw.  Co.,  32 
Beav.  340;  Knapp  v.  L.  C.  &  Dover  Railw.,  2  H.  &  C.  212. 

3  The  Marquis  of  Salisbury  v.  The  Great  Northern  Railw.  Co.,  10  Eng.  L.  & 
Eq.  344.  The  position  is  here  distinctly  assumed,  that  after  the  notice  to  treat 
the  parties  stand  in  the  relation  of  vendor  and  purchaser,  and  the  company  are 
not  at  liberty  to  recede.  All  the  after  proceedings  are  merely  for  the  purpose 
of  ascertaining  the  price  of  the  land.  Sparrow  v.  Oxford  &  Worcester  Railw. 
Co.,  9  Hare,  436;  12  Eng.  L.  &  Eq.  249. 


§  88.  NOTICE   TO   TREAT   FOR   PURCHASE   OF   LAND.  359 

fore  the  efflux  of  the  time  limited,  although  they  had  not  en- 
tered upon  the  land,  their  powers  to  purchase  or  enter  upon  the 
lands  are  saved.3 

5.  And  where  a  railway  company  gave  notice  to  a  tenant  at 
will  to  take  part  of  the  lands,  and  the  company  was  allowed  to 
take  possession  and  complete  their  line,  and  afterwards  a  person, 
who  had,  subsequently  to  the  notice,  purchased  one  ninth  of  the 
land,  filed  a  bill  merely  praying  an  injunction  to  restrain  the 
railway  company  from  entering  upon,  continuing  in  possession 
of,  or  otherwise  interfering  with  the  land,  the  bill  was  dismissed 
with  costs.4 

6.  But  it  seems  to  be  considered  that  mere  notice  by  a  rail- 
way company  of  an  intention  to  take  land,  may  be  withdrawn  if 
done  before  the  company  have  taken  possession  of  the  land,  or 
done  anything  in  pursuance  of  the  notice.5  And  this  is  espe- 
cially true  where  the  land  consists  of  a  house  and  appurtenances, 
and  the  notice  only  extends  to  taking  a  part  of  the  land,  and  the 
owner  requires  the  company  to  take  the  whole  land  with  all  the 
buildings. 

7.  It  is  no  objection  to  a  notice  to  take  land  for  the  use  of  a 
railway  company  that  it  does  not  declare  the  use  for  which  it  is 
proposed  to  be  taken  ;  nor  will  it  affect  the  title  of  the  company 
that  it  is  taken  for  a  station  for  the  joint  use  of  that  and  another 
company,  which  latter  company  could  not  have  taken  the  land 
for  their  own  use  alone.6 

4  Carnochan  v.  Norwich  &  Spalding  R.  Co.,  26  Beav.  169.  But  a  notice  to 
treat,  in  order  to  become  the  inception  of  title,  must  be  followed  up  within  a 
reasonable  time,  or  it  will  be  regarded  as  abandoned.  Hedges  v.  The  Metro- 
politan Railw.  Co.,  6  Jur.  N.  S.  1275. 

5  King  v.  The  Wycombe  Railw.  Co.,  6  Jur.  N.  S.  239  ;  s.  c.  28  Beav.  104  ; 
Gardner  v.  Charing-Cross  Railw.  Co.,  2  J.  &  H.  248;  B.C.  8  Jur.  N.  S.  151. 
Where  the  company  agree  verbally  to  take  the  whole  of  a  house  and  land,  that 
is  a  valid  waiver  of  notice  under  the  statute,  and  will  be  enforced  in  equity. 
Binney  v.  Hammersmith  &  City  Railw.  Co.,  9  Jur.  N.  S.  773.  Tenant  coming 
into  possession  of  land  after  notice  to  treat,  and  before  proceedings  taken,  is  en- 
titled to  renewal  of  notice,  so  as  to  make  him  party.  Carter  v.  Great  Eastern 
R.  Co.,  9  Jur.  N.  S.  618. 

6  Wood  v.  Epsom  &  L.  Railw.  Co.,  8  C.  B.  N.  S.  731. 


360        REMEDIES  BY  LAND-OWNERS   UNDER  ENGLISH  STATUTE.      §  89. 


♦SECTION    IV. 


Requisites  of  the  Notice  to  Treat. 


1.  Notice  to  treat  must,  in  terms  or  by  refer- 

ence, accurately  describe  land. 

2.  After  notice  to  treat  company  compellable 

to  purchase.     Company  cannot  retract 
after  giving  notice  to  treat. 


3.  New  notices  given  for  additional  lands. 

4.  Power  to  take  land  not  lost  by  former  un- 

warranted attempt. 

5.  Lands  may  be  taken  for  branch  railway. 

6.  Effect  of  notice  in  case  of  a  public  park. 


§  89.  1.  As  by  the  English  statute  the  notice  to  treat  is  made 
the  act  of  purchase,  it  is  of  the  first  importance  that  it  should 
describe  the  lands  accurately.  But  even  where  the  notice  was 
indefinite,  if  it  be  accompanied  with  a  plan  which  shows  the  very 
land  proposed  to  be  taken,  it  will  be  sufficient;1  or  reference 
may  be  made  to  the  parliamentary  plan.1  The  company  can 
only  claim  to  use  what  their  notice  and  the  annexed  plan  shows 
clearly  was  submitted  to  the  appraisers  to  value.2 

2.  It  was  held  long  ago  in  the  English  courts,  under  similar 
statutes  for  taking  land  by  compulsion,  that  the  notice  to  treat 
constituted  the  act  of  purchase,  and  that  after  giving  it  there 
remained  no  longer  to  the  company  any  power  to  retract,  and 
they  will  be  compelled  by  mandamus  to  complete  the  purchase.3 

3.  And  where  the  company  had  given  notice  to  take  twenty 
perches  of  land,  they  cannot  subsequently  give  notice  to  restrict 
the  land  to  one  perch.4  But  the  company,  having  issued  one 
notice,  may  issue  a  second,  requiring  additional  lands.5     They 

1  Sims  v.  The  Commercial  Railw.,  1  Railw.  C.  431 ;  Hodges  on  Railways,  197. 

2  Kemp  v.  The  London  &  Br.  Railw.  Co.,  1  Railw.  C.  495. 

s  The  King  v.  Hungerford  Market  Co.,  4  B.  &  Ad.  327;  Same  v.  Commis- 
sioners of  Manchester,  Id.  332,  n. ;  Doo  v.  The  London  &  Cr.  Railw.,  1  Railw. 
C.  257  ;  Burkinshaw  v.  Birm.  &  Ox.  June.  Railw.  Co.,  5  Exch.  475  ;  s.  c.  4  Eng. 
L.  &  Eq.  489  ;  Ed.  &  Dundee  Railw.  Co.  v.  Leven,  1  Macq.  House  of  Lords  Cases, 
284;  Stone  v.  The  Commercial  Railw.  Co.,  1  Railw.  C.  3  75.  When  variance 
from  notice  will  not  vitiate  precept,  see  Walker  v.  The  London  &  Bl.  Railw.  Co., 
3  Ad.  &  Ellis  (n.  s.),  Q.  B.  744 ;  Reg.  v.  York  &  North  Midland  R.  Co.,  1  EI. 
&  Bl.  178-858 ;  Reg.  v.  Ambergate  &  C.  R.  Co.,  Id.  372.  See  ante,  §  88,  and 
notes. 

4  Tawney  v.  Lynn  &  Ely  Railw.  Co.,  4  Railw.  C.  615. 

*  Stamps  v.  Bir.  Wolv.  &  Stour  Valley  Railw.,  6  Railw.  C.  123 ;  s.  c.  7  Hare, 

251. 

*  671 


§  90.  NOTICE  MAY   BE   WAIVED.  361 

are  at  liberty,  by  new  notices  from  time  to  time,  to  take  such 
additional  lands  as  the  progress  of  the  work  shows  will  be 
requisite. 

4.  Nor  will  the  company  be  deprived  of  the  power  to  take 
land  for  the  necessary  use  of  the  works,  when  the  emergency 
arises,  by  having  previously  attempted  to  take  it  for  other  pur- 
poses not  warranted  by  their  act.6 

*  5.  And  the  company,  having  opened  their  main  line  for 
travel,  but  not  completed  the  stations  and  works,  are  at  liberty 
to  take  any  lands  within  the  limits  of  deviation  for  a  branch 
railway.7 

6.  But  it  was  held,  that  where  the  Commissioners  of  Woods 
and  Forests  gave  notice  of  taking  lands  for  a  public  park,  as 
they  were  acting  in  a  public  capacity,  the  notice  given  by  them 
did  not  constitute  a  quasi  contract,  enforcible  by  mandamus.8 


SECTION    V. 

The  Notice  may  be  Waived,  by  the  Party  entering  into  Negotiation. 

1.  Notice  must  be  set  forth  in  proceedings.         3.  Certiorari  denied  icfcre  party  has  suffered 

2.  Agreement  to  waive  operates  as  estoppel.  no  injury. 

§  90.  1.  It  is  a  general  rule,  in  regard  to  all  summary  and 
inferior  jurisdictions,  that  the  basis  of  their  jurisdiction  must 
appear  upon  the  face  of  the  proceedings.1  Hence  in  proceedings 
to  take  land  in  iiivUum,  under  a  notice  to  treat,  the  notice  being 
regarded  as  essential  to  the  jurisdiction,  it  has  more  generally 
been  held  indispensable  to  the  jurisdiction  that  it  should  be  set 
forth  upon  the  proceedings.1 

2.    But  where  the  land-owner  enters  into  negotiation  with  the 

*  Webb  v.  Manchester  &  Leeds  Railw.,  1  Railw.  C.  576  ;  Simpson  v.  Lancaster 
&  Carlisle  Railw.,  4  Railw.  C.  625  ;  Williams  v.  South  Wales  Railw.  Co.,  13  Jur. 
443  ;  s.  c.  3  De  G.  &  S.  354. 

7  Sadd  v.  The  Maldon,  W.  &  Braintree  Railw.  Co.,  2  Eng.  L.  &  Eq.  410. 

8  Queen  v.  The  Comm.  of  Woods  &  Forests  (Ex  parte  Budge),  15  Ad.  & 
Ellis  (n.  s.),  761. 

1  Rex  v.  Bagshaw,  7  T.  R.  363  ;  Rex  v.  Mayor  of  Liverpool,  4  Burrow,  2244  ; 
Rex  v.  Trustees  of  the  Norwich  Roads,  5  Ad.  &  Ellis,  563. 

*672 


362        REMEDIES   BY   LAND-OWNERS    UNDER   ENGLISH   STATUTE.      §  91. 

company,  and  agrees  to  waive  the  notice,  he  is  afterwards  es- 
topped from  taking  the  objection,  that  he  never  received  notice.'2 
And  it  was  held,  that  the  party  whose  duty  it  was  to  give  the 
notice,  and  who  was  shown  by  the  returns  to  have  appeared  be- 
fore the  jury,  cannot  object  to  the  inquisition  upon  the  ground 
that  it  did  not  disclose  a  proper  notice  to  treat.3 

3.  In  another  case,  where  application  was  made  to  the  King's 
Bench  to  issue  a  certiorari,  to  bring  up  and  quash  an  inquisi- 
tion for  land  damages  in  a  railway  case,  on  the  ground  of  some 
alleged  defect,  the  court  say,  the  granting  the  writ  is  matter  of 
discretion,  though  there  are  fatal  defects  on  the  face  of  the  pro- 
ceedings which  it  is  sought  to  bring  up ;  and  that  it  is  almost  an 
invariable  rule  *  to  deny  the  writ,  where  it  appears  the  party 
has  suffered  no  injury  or  has  assented  to  the  proceedings  below.4 


SECTION    VI. 
Title  ofK  the  Claimant  must  be  distinctly  stated. 

1 .  Claimant's  reply  to  notice  should  be  clear  I  3.    Where  lands  are  held  by  receiver  or  com- 

and  accurate.  mission  for  a  lunatic.    Expression  "fee- 

2.  Award  bad,  irhicndoes  not  state  claimant's  simple  in  possession." 

interest.  \  n.  3.  Analogous  American  cases. 

§  91.  1.  Iii  reply  to  a  notice  to  treat,  the  claimant  may  state 
the  particulars  of  his  claim  and  proceed  to  treat.  In  this  case 
the  statement  should  give  a  clear  description  of  the  claimant's 
interest  in  the  land,  as  a  defect  here  is  liable  to  affect  the  valid- 
ity of  the  after  proceedings. 

2.  In  one  case  where  the  claimant's  answer  to  the  notice  to 
treat  stated  that,  as  trustees  under  a  will,  they  claimed  an  estate 
in  copyhold,  and  a  certain  sum  as  compensation  for  their  inter- 
est in  the  lands,  and  appointed  an  arbitrator,  and  the  other  party 
appointing  one,  and  an  umpire  being  agreed  upon,  he  awarded 
a  certain  sum  as  the  value  to  be  paid  to  the  trustees,  "  for  the 
purchase  of  the  fee-simple,  in  possession,  free  from  all  incum- 

2  Reg.  v.  The  Committee  for  the  South  Holland  Drainage,  8  Ad.  &  Ellis,  429. 

3  Reg.  v.  The  Trustees  of  Swansea  Harbor,  8  Ad.  &  Ellis,  439. 

4  Reg.  v.  The  Manchester  &  Leeds  Railw.  Co.,  8  Ad.  &  Ellis,  413. 

*  673 


§  91.        TITLE  OF  THE  CLAIMANT  MUST  BE  DISTINCTLY  STATED.         363 

brances"  ;  the  company  applying  to  set  aside  the  award,  upon 
the  ground  that  other  persons  claimed  an  interest  in  the  lands, 
the  court  held  the  award  bad,  for  not  finding  the  interest  of  the 
claimants  in  the  land,  or  that  they  had  a  fee-simple  which  it 
appraised.  But  the  court  did  not  set  the  award  aside,  but  left 
the  company  to  dispute  it,  when  it  should  be  attempted  to  be 
enforced.1 

3.  If  the  lands  are  in  possession  of  a  receiver,  or  the  commit- 
tee of  a  lunatic,  a  special  application  should  be  made  to  the 
Court  of  Chancery.2  The  claimant  cannot  object  that  the  award 
describes  the  land  as  a  fee-simple  in  possession,  whereas,  the  land 
is  in  possession  of  a  tenant.  Lord  Denman,  Ch.  J.,  in  giving 
judgment  says,  "  The  answer  is  that  such  assumption,  if  really 
made,  is  in  favor  of  the  claimant,  and  therefore  no  matter  of 
complaint  for  him.  But  it  does  not  pppear  clearly  that  any  such 
assumption  *  was  made.  The  expression  '  fee-simple  in  posses- 
sion,' in  the  claim,  is  used  in  contradistinction  to  fee-simple  in 
reversion  or  remainder."  3 

1  The  North  Staffordshire  Railw.  Co.  v.  Landor,  2  Exch.  235. 

*  hi  re  Taylor  and  York  N.  Midland  Railw.,  6  Railw.  Cas.  741.  In  this  case 
the  Lord  Chancellor  said,  "  All  the  Avorld  ought  to  be  aware,  that  the  sanction 
of  the  Lord  Chancellor  is  necessary  to  be  obtained  in  the  first  instance,  in  cases 
like  the  present." 

*  Bradshaw  and  the  East  &  W.  I.  Docks  and  Birmingham  J.  Railw.  Co.,  12 
Ad.  &  Ellis  (n.  s.),  562.  The  vendor  of  land  to  a  railway  company  does  not 
waive  his  lien  for  damages  by  accepting  a  certificate  of  deposit  made  by  the 
cashier  of  the  company  for  the  purchase-money,  the  money  not  being  paid 
when  called  for.  Mims  v.  Macon  &  W.  Railw.  Co.,  3  Kelly,  333.  Where  a 
company  received  a  grant  of  certain  salt  mines,  subject  to  a  condition  which 
they  did  not  comply  with,  but  retained  the  lands  for  a  different  purpose,  and 
afterwards,  when  the  period  for  performing  the  condition  had  expired,  a  general 
grant  of  all  unoccupied  salt  lands  in  the  state,  necessary  to  use,  for  constructing 
a  railway,  was  made  to  a  railway  company,  who  proceeded  and  occupied  the 
lands  above-named,  it  was  held  that  the  first  grantors  had  no  interest  or  title 
enabling  them  to  maintain  an  action  for  damages.  "  They  had  the  lands  set 
apart  to  their  use,  for  making  salt,  and  had  no  right  to  enter  upon  and  occupy 
them  for  any  other  purpose,"  are  the  words  of  the  court.  Parmelee  v.  Oswego 
&  Syracuse  R.  R.  Co.,  7  Barb.  599. 

The  statute  of  Pennsylvania  gives  the  right  to  construct  lateral  railways  over 
intervening  lands,  to  the  owner  of  lands,  mills,  quarries,  coal,  or  other  mines, 
lime-kilns,  or  other  real  estate,  in  the  vicinity  of  any  railway,  canal,  or  slack- 
water  navigation.     It  was  held,  that  one  who  was  in  possession  of  the  land,  on 

*674 


364        REMEDIES   BY   LAND-OWNERS   UNDER   ENGLISH   STATUTE.      §  92. 

♦SECTION    VII. 
The  Claim  of  the  Land-owner  must  correspond  with  the  Notice. 

§  92.  In  one  case  the  claim  of  the  land-owner  described  more 
land  than  the  notice  to  treat,  being  intersected  land,  less  than 
one  half  acre,  which  the  company  are  bound  to  take  if  so  re- 
quired. But  the  claim  did  not  properly  designate  the  portion 
which,  it  was  claimed,  the  company  should  take  under  their 
notice,  and  that  which  they  were  required  to  take,  as  intersected 
land.  The  umpire  received  evidence  as  to  the  value  of  the  inter- 
sected land,  and  awarded  one  entire  sum  as  compensation  for 
the  whole.  Held  that  the  award  was  bad,  there  being  no  valid 
submission  as  to  intersected  lands.1 

which  a  coal-mine  was,  at  the  commencement  of  the  proceeding  to  recover  land 
damages,  and  who  had  erected  a  two-story  dwelling-house  upon  the  land,  was 
an  owner  of  the  coal-mine,  within  the  act.  Shoenberger  v.  Mulhollan,  8  Penn. 
St.  134.  It  is  sufficient  in  such  case  that  the  petition  be  signed  by  the  lessee 
and  agent  of  the  owner.     Harvey  v.  Lloyd,  3  Penn.  St.  331. 

It  is  considered  necessary  that  the  mortgagee  of  land  should  become  a  party 
to  the  proceedings  for  condemning  or  granting  land  to  a  railway,  in  order  to 
give  good  title  to  the  company.  Stewart  v.  Raymond  Railw.,  7  S.  &  Mar.  568. 
Or  that  he  should  give  his  consent,  in  writing,  in  the  case,  to  the  proceeding 
taken  by  the  mortgagor.  Meachamr.  Fitchburg  Railw.,  4  Cush.  291 ;  s.  c.  1  Am. 
Railw.  Cas.  584.  But  the  mortgagor  may  recover  the  full  amount  of  damage, 
without  regard  to  mortgages.     Breed  v.  Eastern  Railw.,  5  Gray,  470. 

Where  the  state  held  land  for  a  state  prison,  and  granted  the  charter  of  a 
railway,  in  the  usual  form,  authorizing  the  company  to  locate  their  road,  so  that 
it  might  pass  over  the  land  of  the  state,  so  held,  but  without  any  expression  in 
the  act  of  a  design  to  aid  the  company  in  their  undertaking,  it  was  held  the 
state  might  recover  damages  for  the  land  taken.  The  court  say,  "  The  inquiry 
relates  solely  to  the  property  of  the  Commonwealth,  which  it  holds  in  fee  in  its 
capacity  as  a  body  politic.  It  appears  to  us  the  question  is  purely  one  of  inten- 
tion." "  We  think  if  the  legislature  had  intended  to  aid  the  enterprise  by  an 
appropriation  of  money,  land,  or  other  means,  —  such  aid  being  unusual,  —  the 
purpose  to  do  so  would  have  been  in  some  way  expressed."  Commonwealth  v. 
Boston  &  Maine  Railw.,  3  Cush.  25;  s.  c.  1  Am.  Railw.  Cas.  482,  496,  497. 

1  The  N.  Staffordshire  R.  Co.  v.  Wood,  2  Excheq.  244. 
*675 


§98. 


LANDS   TAKEN    OR   INJURIOUSLY   AFFECTED. 


365 


*CHAPTER    XIII. 


ENTRY    UPON    LANDS   BEFORE   COMPENSATION    IS    ASSESSED. 


SECTION    I. 


Lands  taken  or  Injurious///  Affected,  without  havim 
made  Compensation  to  the  Parties. 


previously 


1.  No  entry  under  English  statutes  without 

previous  compensation,  except  for  pre- 
liminary survey. 

2.  Legal  remedies  against  company  offend- 

ing. 


3.  What  acts  constitute  talcing  possession  un- 

der statute. 

4.  Company    may   enter  with    land-owner's 

consent  after  agreement  for  arbitration. 

5.  Bond  may  be  given  in  certain  cases. 


§  93.  1.  The  eighty-fourth  section  of  the  English  statute, 
The  Lands  Clauses,  &c,  provides,  that  no  entry  shall  be  made 
upon  any  lands  by  the  company  until  compensation  shall  have 
been  made  under  the  act,  or  deposited  in  the  Bank  of  England, 
except  for  the  purpose  of  preliminary  surveys,  and  probing  or 
boring  to  ascertain  the  nature  of  the  soil,  which  may  be  done 
by  giving  notice,  not  more  than  fourteen  days  or  less  than  three 
days,  and  making  compensation  for  any  damage  thereby  occa- 
sioned to  the  owners  or  occupiers  of  such  lands. 

2.  It  has  been  considered  that  if  the  company  enter  upon 
lands  without  complying  with  the  requisitions  of  the  statute, 
they  are  liable  in  trespass  or  ejectment.1  And  in  some  cases  an 
injunction  will  be  granted.  But  where  the  company  entered  to 
make  preliminary  surveys,  without  giving  the  requisite  notice, 
the  court  refused  to  order  the  injunction,  but  reserved  the  ques- 
tion of  costs.2 

1  Doe  d.  Hutchinson  v.  The  Manchester,  Bury,  and  Rosendale  Railw.,  14  M. 
&W.  687. 

2  Fooks  v.  The  Wilts,  Somerset,  and  Weymouth  Railw.  Co.,  5  Hare,  199; 
s.  c.  4  Railw.  C.  210.  In  this  case  the  injunction  was  denied,  chiefly  upon  the 
ground  that  the  alleged  trespass  was  complete  before  the  application.  The 
court  intimate  that  if  the  company  should  attempt  to  proceed  further  it  might  be 
proper  to  restrain  them  by  injunction.  The  point  of  the  company  being  in  the 
wrong,  is  distinctly  recognized  by  the  court 

•676 


366       ENTRY  UPON  LANDS  BEFORE  COMPENSATION  IS  ASSESSED.      §  93. 

3.  And  where  the  entry  was  regularly  made  upon  the  land, 
for  *  preliminary  surveys,  and  afterwards  the  contractors,  with- 
out the  knowledge  of  the  corporation,  but  with  the  consent  of 
the  occupying  tenants,  brought  some  of  their  wagons  and  rails 
and  other  implements  upon  the  land,  but  did  not  commence  the 
works  or  do  any  damage,  and  this  was  without  the  assent  of  the 
owner,  and  his  agent  thereupon  filed  a  bill  to  obtain  an  injunc- 
tion against  taking  possession  of  the  lands  until  they  had  com- 
plied with  the  statute,  the  Vice-Chancellor  said,  that  although  the 
company  were  bound  by  the  acts  of  their  contractors,  the  acts 
done  were  not  a  taking  possession  within  the  meaning  of  the 
statute,  and  that  the  bill  was  improperly  filed.3 

4.  But  where  the  company  agreed  with  the  land-owner  that 
the  question  of  compensation  should  be  settled  by  arbitration, 
and  thereupon  entered  upon  the  land,  by  consent  of  the  owner, 
and  the  arbitrator  made  an  award,  which  became  the  subject  of 
dispute,  and  the  owner  thereupon  gave  the  company  notice  to 
quit,  and  brought  ejectment,  it  was  held  he  could  not  recover, 
although  the  company  had  not  tendered  the  money  awarded,  or 
a  conveyance,  but  that  the  owner's  remedy  was  to  proceed  upon 
the  award.4  The  notice  to  quit  under  the  circumstances  did 
not  make  the  company  trespassers. 

5.  By  the  eighty-fifth  section,  if  the  company  find  it  necessary 
to  enter  upon  land,  for  the  purpose  of  carrying  forward  their 
works,  before  the  amount  of  compensation  can  be  settled,  they 
may  deposit  in  the  bank  the  amount  claimed,  or  in  other  cases 
the  appraisal,  and  also  give  the  party  a  bond  with  surety,  to  be 
approved  by  two  justices  in  a  penal  sum  equal  to  the  amount  so 
deposited  conditioned  for  the  payment,  or  deposit  of  the  amount 
finally  fixed  as  the  ultimate  value  and  interest  thereon,  and  then 
take  possession  of  the  land  and  proceed  with  their  works.  The 
company  can  obtain  their  money  so  soon  as  the  condition  of  the 
bond  has  been  complied  with.  But  the  vendor  must  join  in  the 
petition  for  the  money  to  be  paid  the  company,  or  else  it  must 

*  Standish  v.  Mayor  of  Liverpool,  1  Drewry,  1  ;    s.  c.  15  Eng.  L.  &  Eq.  255. 

4  Doe  d.  Hudson  v.  The  Leeds  and  Bradford  Railw.  Co.,  6  Eng.  L.  &  Eq.  283. 
The  decision  here  goes  chiefly  upon  the  ground  of  the  consent  of  the  land-owner 
to  the  entry  of  the  company,  and  to  refer  the  compensation  to  an  arbitrator. 
*  677 


§  93.  LANDS   TAKEN   OR   INJURIOUSLY   AFFECTED.  367 

be  shown  that  he  has  been  served  with  a  copy  of  the  petition.6 
It  *does  not  invalidate  the  bond,  if  it  bear  date  before  the  date 
of  the  valuation.6 

8  Ex  parte  South  Wales  Railw.  Co.,  G  llailw.  C.  151.  But  in  ex  parte  The 
Eastern  Counties  llailw.  Co.,  5  Railw.  C.  210,  the  money  was  ordered  to  be  paid 
to  the  company  upon  affidavits  showing  the  claim  settled.  The  land-owner  has 
no  lien  upon  the  money  deposited  for  costs,  but  the  company  are  entitled  to  the 
money  upon  payment  of  the  sum  finally  settled  for  the  value  of  the  land.  The 
Great  Northern  Railw.  Co.  ex  parte,  5  Railw.  Cases,  269;  London  &  South 
W.  R.  ex  parte  Stevens,  5  Railw.  C.  437. 

The  bond  must  be  given  in  the  very  terms  of  the  statute.  Ilosking  v.  Phil- 
lips, 3  Exch.  168,  opinion  of  Parke,  B.  And  it  will  make  no  difference  that  the 
obligee  is  a  gainer  by  the  deviation  from  the  statute.  Poynder  v.  G.  N.  Railw. 
Co.,  5  Railw.  C.  196. 

But  where  the  company  choose  to  treat  for  the  claimants'  title  only,  it  is  suf- 
ficient if  the  bond  follow  the  statute,  so  far  as  it  applies  to  that  particular  case. 
Willey  v.  Southeastern  Railw.  Co.,  6  Railw.  Cas.  100.  Opinion  of  Lord  Chan- 
cellor, 107,  108.  If  the  company  enter  by  consent  of  the  tenant,  and  do  perma- 
nent damage  to  the  land,  the  owner  may  nevertheless  obtain  an  injunction  and 
compel  them  to  make  a  deposit  and  give  a  bond  as  required  by  the  statute. 
Armstrong  v.  Waterford  &  Limerick  Railw.  Co.,  10  Irish  Eq.  60.  If  there  is  a 
mortgage  upon  land,  the  company  must  treat  with  the  mortgagee,  or  provide  for 
the  expense  of  reinvestment  for  his  benefit,  or  their  entry  will  be  regarded  as 
unlawful.  Ranken  v.  East  and  West  India  Docks  &  Bir.  J.  Railw.,  12  Beavan, 
298;  19  L.  J.  Ch.  153. 

Under  the  general  statutes,  in  many  of  the  American  states,  where  there  are 
conflicting  claims  to  the  land  required  by  a  railway  company,  the  company  are 
required  to  make  application  to  the  Court  of  Chancery,  and  deposit  the  money, 
in  bank,  subject  to  the  final  order  of  that  court.  In  such  case  it  has  been  con- 
sidered that  the  company  had  no  interest  in  the  controversy,  after  depositing 
the  money  for  the  price  of  the  land.  Haswell  v.  Vermont  Central  Railw.,  23 
Vt.  R.  228. 

•  Stamps  v.  Birmingham,  Wolverhampton,  &  Stour  Valley  Railw.,  6  Railw. 
C.  123. 

*  678 


3G8       ENTRY  UPON  LANDS  BEFORE  CONPENSATION  IS  ASSESSED.      §  94. 


SECTION    II. 

The  proceedings  requisite  to  enable  the  Company  to  enter  vpon 

Land. 

1.  Provisional  valuation  under  English  stat-    4.  Entry  after  verdict  estimating  damages, 

utes.  but  before  judgment. 

2.  Irregularities  in  proceedings.  5.  Mode  of  assessing  damages  provided  in 

3.  Penalty  for  irregular  entry  upon  lands.  charter  not  superseded  by  subsequent  gen- 

I  eral  railway  act. 

§  94.  1.  In  some  cases  specified  in  the  English  statute,  it  is 
necessary  to  have  a  provisional  valuation  of  land,  by  a  surveyor 
appointed  by  two  justices,  to  determine  the  amount  of  the  secu- 
rity to  be  given  before  the  entry  of  the  company  upon  the  land. 
Where  in  such  cases  the  justices  appointed  a  surveyor,  who  had 
all  along  acted  for  the  company,  to  appraise  the  value,  it  was 
held  no  sufficient  reason  to  interfere,  by  injunction,  but  the  court 
reprobated  such  a  practice.  The  court  also  declined  to  interfere, 
by  injunction,  on  the  ground  that  the  sureties  on  the  bond  were 
the  company's  solicitors,  and  were  upon  similar  bonds  to  a 
large  amount.1 

*  2.  In  the  same  case  it  was  considered  that  depositing  money 
and  executing  a  bond  to  tenants  in  common,  in  their  joint 
names,  was  irregular.1  It  was  held  that  the  proceedings  under 
the  85th  section  of  the  English  act,  to  obtain  possession  of  the 
land  before  the  amount  of  compensation  is  settled,  may  be  ex 
parte,  and  altogether  without  notice.2 

3.  The  English  statute  subjects  the  company  to  a  penalty  for 
entering  upon  lands  before  taking  the  steps  required  by  the 

1  Langham  v.  Great  Northern  Railw.  Co.,  5  Raihv.  C.  265,  266.  This  case  was 
in  favor  of  five  plaintiffs,  three  tenants  in  common,  and  two  devisees  in  trust  for 
the  sale  of  the  lands,  and  it  was  queried,  whether  there  was  not  a  misjoinder. 

s  Bridges  v.  The  Wilts,  Somerset,  and  Weymouth  Railw.  Co.,  4  Railw.  C.  622. 
This  is  a  decision  of  the  Lord  Chancellor  affirming  that  of  the  Vice- Chancellor 
of  England.  Poynder  v.  The  Great  N.  Railw.  Co.,  5  Railw.  C.  196.  In  this 
case  the  bond  was  held  to  be  informal',  for  being  made  to  be  performed  "  on  de- 
mand," the  Lord  Chancellor  refused  a  perpetual  injunction,  but"  allowed  it  till 
the  bond  was  corrected. 
*679 


§  95.  OBTAINING   COMPENSATION   WHERE  NONE   OFFERED.  369 

statute,  but  provides,  that  the  penalty  shall  not  attach  to  any 
company,  who  have  bond  fide  done  what  they  deemed  to  be  a 
compliance  with  the  statute.3 

4.  If  one  enter  upon  lands  after  verdict  estimating  damages, 
but  before  judgment  on  the  verdict,  he  is  liable  in  trespass,  but 
only  for  the  actual  injury,  and  not  for  vindictive  or  exemplary 
damages.4 

5.  It  has  often  been  made  a  question  in  this  country,  where 
the  charter  of  a  railway  provides  one  mode  of  assessing  land 
damages,  and  a  subsequent  general  railway  act  provides  a  differ- 
ent mode,  which  the  company  are  bound  to  pursue.  It  has 
been  held  the  company  might  still  pursue  the  course  pointed  out 
in  their  charter.5 

*SECTION    III. 

Mode  of  obtaining1  Compensation  under  the  Statute,  for  Lands 
taken,  or  injuriously  affected,  where  no  Compensation  is  of- 
fered. 

1.   Claimant   may  elect  arbitration  or  jury  I  2.  Method  of  procedure, 
trial. 

§  95.  1.  Where  land  is  taken  by  the  company,  or  injuriously 
affected  by  their  works,  and  no  compensation  has  been  offered 
by  the  company,  the  claimant  may,  where  the  amount  exceeds 
fifty  pounds,  have  the  same  assessed,  either  by  arbitrators  or  a 
jury,  at  his  election. 

2.  If  he  desire  to  have  the  same  settled  by  arbitration,  he 
shall  give  notice  to  the  company  of  his  claim,  stating  his  interest 
in  the  land  and  the  amount  he  demands,  and  unless  the  com- 
pany within  twenty-one  days  enter  into  a  written  agreement  to 

3  Hutchinson  v.  The  Manchester,  Bury,  and  Rossendale  Railw.  Co.,  15  M.  & 
W.  314.  Pollock,  Ch.  B.,  thus  lays  down  the  rule  of  construction  of  this  statute  : 
"  A  penal  enactment  ought  to  be  strictly  construed,  but  a  proviso,  which  has  the 
effect  of  saving  parties  from  the  consequences  of  a  penal  enactment,  should  be 
liberally  construed." 

1  Harvey  v.  Thomas,  10  Watts,  63. 

6  Visscher  v.  Hudson  River  Railw.,  15  Barbour,  37;  Hudson  River  Railw.  v. 
Outwater,  3  Sand.  Sup.  Ct.  689 ;  ante,  §  72,  n.  at  the  end. 

VOL.  I.  24  *680 


370       ENTRY  UPON  LANDS  BEFORE  COMPENSATION  IS  ASSESSED.      §  96. 

pa)r  the  amount  claimed,  the  same  shall  be  settled  by  arbitration, 
in  the  manner  pointed  out  in  the  statute ;  or,  if  the  party  desire 
to  have  the  same  settled  by  a  jury,  he  shall  so  state  in  his  notice 
of  claim,  and  unless  the  company  agree  to  pay  the  sum  claimed, 
in  the  manner  stated  above,  they  shall  within  twenty-one  days 
issue  their  warrant  to  the  sheriff  to  summon  a  jury  to  settle  the 
same,  in  the  manner  pointed  out  in  the  act,  and  in  default  there- 
of they  shall  be  liable  to  pay  the  amount  claimed,  to  be  recov- 
ered in  the  superior  courts.1 


SECTION    IV, 


T/ie  Onus  of  carrying  forward  Proceedings. 


1.  Rests  upon  claimant  after  company  have 

taken  possession. 

2.  Miscellaneous  provisions. 


3.  Proceedings  cannot  be  had  unless  actual 
possession  is  taken  or  injury  done. 


§  96.  1.  It  has  been  held,  under  the  English  statutes,  that 
after  the  company  have  taken  possession  of  land,  either  by  right 
or  by  wrong,  the  onus  of  taking  the  initiative  steps  to  have  the 
purchase-money  or  compensation  assessed,  lies  upon  the  claim- 
ant.1 It  was  *  considered  in  this  case,  that  the  remedy  under 
the  68th  section2  applied  to  all  cases  where  the  company  took 
possession  of  the  land  under  the  85th  section.3 

2.  But  if  questions  in  equity  are  pending,  they  must  be  dis- 
posed of  before  the  common-law  remedy  can  be  pursued.4  This 
was  a  case  where  the  determination  of  the  matters  pending  in 
equity  was  necessary  to  enable  the  parties  to  know  what  was 
to  be  submitted  to  the  assessors.4    In  proceedings  under  the  68th 

1  8  &  9  Vict.  ch.  18,  §  68. 

1  Adams  v.  The  London  &  Blackball  Railw.  Co.,  6  Railw.  C.  271,  282.  The 
opinion  of  the  Lord  Ch.  on  appeal.  It  was  also  considered,  in  this  case,  that  if 
the  company  failed  to  perform  their  duties  in  the  proceedings,  the  more  appro- 
priate remedy  was  by  mandamus,  and  not  by  application  to  the  courts  of  equity 
tor  decree  of  specific  performance. 

2  See  ante,  §  95. 

*  See  ante,  §§  93,  94.  Doe  d.  Armistead  v.  North  Staffordshire  Railw.  Co.,  4 
Eng.  L.  &  Eq.  216. 

4  Southwestern  Railw.  Co.  v.  Coward,  5  Railw.  C.  703. 
*681 


§  97.    EQUITY  WILL  NOT  INTERFERE  BY  INJUNCTION,  ETC.    371 

section,  it  is  not  necessary  for  the  company  to  give  the  claimant 
notice  of  their  issuing  a  warrant  to  the  sheriff  to  summon  a 
jury,  ten  days  before  they  issue  it,  as  is  required  in  proceedings 
under  the  other  sections.5  It  was  held,  that  if  the  claimant 
recover  a  larger  sum  than  was  offered  by  the  company,  he  is 
entitled  to  recover  costs  under  section  68,  as  well  as  under  other 
sections.5 

3.  It  is  considered  that  the  land  must  be  actually  taken,  or 
actually  injuriously  affected  by  the  company,  before  the  claimant 
can  take  proceedings  under  section  68.  Hence  if  the  company 
give  notice  of  their  intention  to  take  lands,  but  do  not  afterwards 
actually  take  possession  or  injuriously  affect  them,  the  claimant 
can  only  proceed  by  mandamus.  It  has  been  decided  that  the 
claimant  in  such  case  cannot  make  a  demand  of  a  certain  sum, 
and  then  recover  it,  if  the  company  do  not  issue  their  warrant  to 
the  sheriff.6 

♦SECTION    V. 

Equity  will  not  interfere,  by  Injunction,  because  Lands  are  being 
Injuriously  Affected,  loithout  notice  to  treat,  or  previous  com 
pensation. 

1 .  Claimant  must  wait  until  works  are  com-    3.  How  Jar   equity    interferes    where    legal 

pitted.  claim  of  party  is  denied. 

2.  Even  if  appearance  of  land  will  be  great-    4.    Where  a  special   mode  of  compensation 

ly  altered.  has  been  agreed  upon. 

§  97.  1.  It  is  said  courts  of  equity  will  not  interfere  by  in- 
junction, because  lands  are  being  injuriously  affected  .by  the 
company's  works,  and  no  notice  to  treat  or  previous  compensa- 
tion has  been  made,  if  it  appears  the  company  are  only  exercis- 
ing their  statutory  powers.      The   claimant  should  allow  the 

1  Railstone  v.  The  York,  Newcastle,  &  B.  Railw.  Co.,  15  Ad.  &  Ellis  (n.  s.), 
404.  This  case  is  somewhat  questioned  in  Richardson  v.  Southeastern  Railw., 
C  Eng.  L.  &  Eq.  426.  But  in  this  same  case,  in  error,  in  the  Exchequer  Chamber, 
9  Eng.  L.  &  Eq.  464,  the  question  as  to  costs  is  affirmed,  and  the  court  say,  it  is 
not  necessary  to  say  whether  they  consider  the  case  of  Railstone  v.  The  York, 
N.  &  B.  Railw.  Co.  sound  or  not,  as  it  does  not  necessarily  affect  the  question 
before  the  court. 

8  Burkinshaw  v.  Bir.  &  Oxford  J.  Railw.  Co.,  5  Excheq.  475. 

*682 


372      ENTRY  UPON  LANDS  BEFORE  COMPENSATION  IS  ASSESSED.      §  97. 

works  to  be  completed,  and  then  take  his  remedy  under  the 
statute.1 

2.  It  was  objected,  in  one  case,  that  the  company  would  be 
likely  to  greatly  alter  the  appearance  of  the  land  which  they  had 
entered  upon,  and  that  a  jury  could  not  understandingly  assess 
the  value  after  the  damages  were  sustained,  but  the  court  said 
it  was  no  ground  for  the  interference  of  a  court  of  equity.2 

3.  The  courts  in  England  hold,  that  in  this  class  of  claims  it 
is  proper  to  wait  till  the  full  extent  of  the  injury  is  known.3 
And  equity  will  not  enjoin  the  party  from  proceeding  under  the 
statute,  in  a  case  where  it  is  alleged  that  he  has  no  legal  claim 
under  the  statute,4  as  in  such  case  the  company  may  defend 
against  the  award,  and  this  seems  to  be  the  course  finally  deter- 
mined. But  some  actions  at  law  have  been  brought  and  sus- 
tained to  try  the  right,  by  order  of  the  courts  of  equity.5 

4.  So,  too,  where  the  bill  alleges  that  the  party  has  upon  con- 
sideration agreed  to  receive  compensation  in  a  particular  mode, 
equity  will  enjoin  him  from  taking  proceedings  under  the 
statute.6 

1  8  &  9  Vict.  ch.  18,  §  68. 

1  Laugharn  v.  Great  Northern  Railw.,  5  Railw.  C.  263.  The  counsel  for  de- 
fendant not  called  to  answer  this  portion  of  plaintiff's  argument. 

8  Hutton  v.  The  London  &  Southw.  Railw.  Co.,  7  Hare,  259. 

4  East  '&  West  India  Docks  &  Bir.  J.  Railw.  Co.  v.  Gattke,  3  Eng.  L.  &  Eq. 
59;  South  Staffordshire  Railw.  Co.  v.  Hall,  Id.  105.  In  this  last  case,  the 
opinion  of  Lord  Cranworth  seems  to  overrule  that  of  Lord  Cotlenham  in  The 
London  &  N.  W.  Railw.  Co.  v.  Smith,  5  Railw.  C.  716.  The  Sutton  Harbor 
Improvement  Co.  v.  Hitchins,  9  Eng.  L.  &  Eq.  41  ;  The  London  &  N.  W. 
Railw.  Co.  v.  Bradley,  6  Railw.  C.  551.  See  also  Monchet  v.  G.  W.  Railw. 
Co.,  1  Railw.  C.  567.  But  see  the  case  of  L.  &  Y.  Railw.  v.  Evans,  19  Eng.  L. 
&  Eq.  295,  where  the  case  of  L.  &  N.  W.  Railw.  v.  Smith  is  still  further  ques- 
tioned. 

8  Glover  v.  The  North  Staffordshire  Railw.  Co.,  5  Eng.  L.  &  Eq.  335. 

9  Duke  of  Norfolk  v.  Tennant,  10  Eng.  L.  &  Eq.  237. 


§98. 


CANNOT   DETERMINE   TITLE  ;    ONLY   DAMAGES. 


373 


♦SECTION    VI. 


Sheriff's  Jury,  or  Arbitrator,  cannot  determine  the  Question  of 
Right  in  the  Claimant,  but  only  the  amount  of  Damages. 


1.  Later  English  decisions  sustain  this  view. 

2,  3.  Statement  of  recent  case. 

4.  In  most  American  states  assessment  is  final. 


5.  Plaintiff"  will  recover  damages   assessed 
if  he  suffered  any  legal  injury. 


§  98.  1.  There  has  been  some  contrariety  of  opinion  among 
the  English  judges  in  regard  to  the  right  of  the  company,  before 
the  sheriff's  jury,  to  raise  the  question  of  the  claimant's  right  to 
recover  any  compensation,  under  the  sixty-eighth  section,  where 
lands  are  taken  or  alleged  to  be  injuriously  affected  by  the  works 
of  the  company ;  and  whether  the  jury  can  go  into  any  inquiry 
beyond  that  of  the  value  of  the  claimant's  interest  in  the  land. 
The  latest  decisions  upon  this  point  hold,  that  the  jury  is  con- 
fined to  the  question  of  the  amount  of  compensation.1 

2.  In  the  very  latest  English  case  upon  this  subject,2  the 
judges  of  the  Court  of  Queen's  Bench  differed  in  opinion,  and 
delivered  opinions  seriatim.  Coleridge,  J.,  and  Lord  Campbell, 
Ch.  J.,  and  Wightman,  J.,  holding,  that  the  jury  had  nothing 
before  them  but  the  quantum  of  damages,  and  that  whether  the 
company  declined  to  issue  their  warrant  to  the  sheriff,  or  did 
issue  it  in  both  cases,  the  right  to  recover  any  damage  on  ac- 
count of  a  claim  for  the  injuriously  affecting  of  land,  was  to  be 
tried  upon  the  action,  to  recover  the  amount  assessed,  in  the 
courts.  The  proceedings  under  the  statute  were  held,  by  the 
majority  of  the  court,  to  be  merely  for  the  purpose  of  fixing  the 
amount  of  the  claim.  If,  indeed,  the  company  stood  still  upon 
the  question  of  right,  they  were  liable,  in  the  event  of  the  claim- 
ant's recovery,  for  the  full  amount  of  the  claim  made ;  but  if 
they  proceeded  to  a  hearing  before  the  arbitrator  or  a  jury, 
whichever  course  the  claimant  should  elect,  they  might  not  only 
contest  the  amount  there,  but  the  right  of  any  recovery  in  the 
action  which  the  claimant  was  compelled  to  bring,  to  obtain  ex- 

1  Regina  v.  Metropolitan  Comm.  of  Sewers,  18  Eng.  L.  &  Eq.  213. 

2  Regina  v.  The  London  &  Northwestern  Railw.  Co.,  25  Eng.  L.  &  Eq.  37. 

*683 


374      ENTRY  UPON  LANDS  BEFORE  COMPENSATION  IS  ASSESSED.      §  98. 

edition  against  the  company,  but  that  it  was  improper  to  go  into 
any  inquiry  before  the  arbitrator  or  the  jury,  in  regard  to  the 
right  to  recover  anything,  inasmuch  as  this  tended  improperly 
to  embarrass  the  mind  of  the  triers  in  regard  to  the  damages. 
And  in  this  case,  where  the  jury  went  into  the  question  of  right, 
and  determined  the  claimant  had  no  right,  but  added,  if  he  had 
such  right  his  claim  *  should  be  valued  at  £150,  the  majority 
of  the  court  determined  that  the  former  part  of  the  verdict  could 
not  be  rejected,  and  let  the  verdict  stand  as  a  good  finding  of 
the  sum  named,  which  last  point  seems  rather  too  refined  for 
common  apprehension,  even  after  reading  attentively  the  elab- 
orate opinion  of  the  majority  of  the  court  by  Coleridge,  J. 

3.  Mr.  Justice  Erie  dissented  from  the  principal  decision  of 
the  court,  and  held  the  verdict  good  in  all  respects.  But  this 
case  must  be  regarded  as  settling  the  question  of  the  right  of  the 
jury  to  pass  upon  the  claim  beyond  its  mere  amount,  at  least 
under  the  English  statutes. 

4.  In  most  of  the  American  states  the  assessment  of  land 
damages,  by  whatever  tribunal,  becomes  final,  unless  appealed 
from,  and  execution  issues  without  resort  to  a  future  action,  or, 
if  an  action  is  necessary  upon  awards  of  arbitrators,  this  will  not 
justify  a  re-examination  of  the  case,  either  upon  the  question  of 
title,  or  amount  of  damages.  But  in  some  of  the  states,  the 
proceedings  are  similar  to  those  above  named  in  the  English 
courts.3 

5.  And  under  the  English  statutes,  where  the  claim  is  for  in- 
juriously affecting  land,  the  plaintiff  must  recover  the  entire 
amount  of  damages  assessed  to  him  for  land  taken  by  a  railway, 
unless  the  defendant's  pleas  show  that  he  had  no  right  to  recov- 
er4 to  any  extent. 

3  Ante,  §  72. 

4  Mortimer  v.  South  Wales  Railw.  Co.,  5  Jur.  N.  S.  784 ;  s.  c.  1  Ellis  &  Ellis, 
375. 

*684 


§99. 


EXTENT   OF   COMPENSATION   TO   LAND-OWNERS. 


i75 


SECTION    VII. 


The  extent  of  Compensation  to  Land-owners ,  and  other  Incidents 
by  the  English  Statutes. 


1 .  Liberal  compensation  allowed. 

2.  Decisions  under  English  statutes." 

3.  Limit    of   period  for     estimating    dam- 

ages. 


4.  Whether  claim  for  damages  passes  to  the 

devise",  or  executor. 

5.  Vendor  generally  entitled  to  damages  ac- 

cruing during  his  time. 


§  99.  1.  In  one  of  the  early  cases1  upon  this  subject,  Lord 
Denman,  Ch.  J.  said,  we  think  it  not  unfit  to  premise,  "  that 
where  such  large  powers  are  intrusted  to  a  company  to  carry 
their  works  through  so  great  an  extent  of  country,  without  the 
consent  of  the  owners  and  occupiers  of  land  through  which  they 
are  to  pass,  it  is  reasonable  and  just  that  any  injury  to  property, 
which  can  be  shown  to  arise  from  the  prosecution  of  those  works, 
should  be  fairly  compensated  to  the  party  sustaining  it."  But 
this  must  be  received  under  some  limitations.  For  it  is  suppos- 
able,  that  possible  remote  injuries  may  accrue  to  property,  of  a 
general  and  public  character,  which  it  was  never  intended  to 
compensate. 

2.  Some  points  arising  under  the  English  statute  may  be  here 
referred  to.  It  was  held,  that  where  the  powers  conferred  upon 
a  *  canal  company  were  unlimited  as  to  time,  no  limitation  as 
to  their  exercise  could  be  assigned,  so  as  to  require  their  exer- 
cise within  a  reasonable  time,2  and,  consequently,  that  the  works 
might  be  resumed  at  any  period.2  Future  damages  to  accrue 
to  land-owners  cannot  be  estimated  properly3  until  after  the 
completion  of  the  works.3     The  compensation  when  given,  fixes 

1  Reg.  v.  Eastern  Counties  Railw.,  2  Ad.  &  Ellis  (Q.  B.),  347. 

2  Thicknesse  v.  The  Lancaster  Canal  Co.,  4  M.  &  W.  472.  Lord  Abinger, 
Ch.  B.  intimates  an  opinion  here,  that  possibly,  after  a  long  delay  of  the  com- 
pany to  proceed  with  their  works,  and  the  erection  of  fences  and  buildings,  by 
the  land-owners,  in  faith  of  the  abandonment  of  the  works  by  the  company,  a 
court  of  equity  might  restrain  the  company  from  completing  their  enterprise, 
notwithstanding  the  grant  of  power  to  do  so,  by  parliament ;  but  a  court  of  law 
could  do  no  such  thing,     p.  490,  491. 

3  Lee  v.  Milner,  2  M.  &  W.  824. 

*G85 


376       ENTRY  UPON  LANDS  BEFORE  COMPENSATION  IS  ASSESSED.      §  99. 

the  rights  of  the  parties,  upon  the  basis  of  its  estimation,  as,  if 
the  estimation  is  had  upon  the  footing  of  an  entire  severance  of 
the  land,  the  land-owner  has  no  right  to  cross  the  track.4  And 
where  this  did  not  sufficiently  appear,  by  the  record  of  the  ver- 
dict, that  not  having  been  made,  held  that  parol  evidence  might 
be  given  of  the  rinding,  and  of  the  grounds  upon  which  it  pro- 
ceeded.4 

3.  Where  consequential  damages  to"  existing  works,  by  the 
erection  of  new  ones,  are  required  to  be  compensated,  the  period 
for  estimation  is  limited  to  the  yearly  value  of  the  works,  ante- 
cedent to  the  passing  of  the  act.5 

4.  The  devisee  is  entitled  to  claim  consequential  damages  and 
not  the  executor.6  But  where  one  contracted  to  sell  freehold 
estates  and  died  before  the  money  was  paid ;  under  the  London 
Bridge  Improvement  Act,  it  was  held  the  money  should  go  to 
the  executor.7  But  the  cases  are  not  uniform  upon  this  subject, 
and  the  usual  course  seems  to  be,  that  the  money  for  consequen- 
tial damage  goes  to  the  party  interested  in  the  inheritance,  or 
else  is  divided  according  to  the  interest  of  the  several  estates.8 
In  one  case  it  was  held,  that  the  vendee  was  entitled  to  compen- 
sation, which  *  accrued  during  the  time  of  the  vendor's  title,  but 
not  liquidated  till  after  the  conveyance.9 

5.  But  in  general  the  vendor  is  entitled  to  land  damages  ac- 
cruing during  his  time,  although  not  collected,  and  often  where 
the  works  are  not  completed  till  after  the  conveyance.10  The 
presumption  is,  if  the  jury  assess  compensation  to  one  person, 
that  it  is  only  for  his  interest  in  the  premises.11 

*  Manning  v.  The  Eastern  Counties  Railw.,  12  M.  &  W.  237.  But  unless  it 
appeared  by  the  record  upon  what  basis  the  assessment  was  made,  it  seems 
questionable,  -whether,  upon  general  principles,  oral  evidence  is  admissible  to 
show  that  basis.     Ante,  §  74,  n.  7. 

6  Manning  v.  The  Commissioner  undg^r  the  W.  I.  Dock  Act,  9  East,  165. 

•  The  King  v.  The  Comm.  under  London  Dock  Acts,  12  East,  477. 

I  Ex  parte  Hawkins,  3  Railw.  C.  505,  and  note.  No  other  party  seems  to 
have  had  a  counter  interest  in  this  case. 

6  The  Midland  Counties  Railw.  Co.  v.  Oswin,  3  Railw.  C.  497;   Danforth  v. 
Smith,  23  Vt.  R.  247. 
»  King  v.  Witham  Nav.  Co.,  3  B.  &  Aid.  454. 
10  Rand  v.  Townshend,  26  Vt.  R.  670. 

II  Rex  v.  Nottingham  Old  Waterworks,  6  Ad.  &  Ellis,  355. 

*686 


§  100.  TEMPORARY   USE   OF   LAND   FOR   CONSTRUCTION.  377 


SECTION    VIII. 

Right  to  temporary  use  of  Land  to  enable  the  Company  to  make 
Erections  upon  other  Lands. 


1 .  Right  to  pass  another  railway  by  a  bridge 
gives  temporary  use  of  their  land,  but  no 
right  to  build  abutments  upon  it. 


gives    right   of  building    a    temporary 
bridge. 
3.  And  if  thus  erected  bona  fide  may  be  used 


2.  Right  to  construct  a  bridge  across  a  canal  for  other  purposes. 

§  100.  1.  Where  one  railway  act  gives  the  company  power 
to  pass  another  railway,  by  means  of  a  bridge,  provided  the 
width  between  the  abutments  of  the  bridge  is  not  less  than 
twenty-six  feet,  and  at  the  points  where  the  bridge  is  to  be  built, 
the  land  of  the  second  company  is  forty-seven  feet  wide,  the  first 
company  have  no  right  to  build  the  abutments  of  their  bridge 
upon  the  land  of  the  second  company,  but  having  purchased  ad- 
joining land  for  that  purpose,  they  have  a  right  at  law  to  the 
temporary  use  of  the  land  of  the  second  company,  for  the  pur- 
pose of  building,  and  this  right  was  in  effect  secured  to  the  first 
company  by  an  injunction  out  of  chancery.1 

2.  So,  too,  where  a  railway  company  had  permission  to  carry 
their  road  over  a  canal,  by  means  of  a  bridge  of  a  given  descrip- 
tion, it  was  held  that  they  might,  as  incident  to  the  right  of 
erecting  the  bridge,  make  a  temporary  bridge  over  the  canal, 
supported  partly  on  piles  driven  into  the  bed  of  the  canal,  to 
enable  them  to  transport  earth  across  the  canal  to  build  the 
necessary  embankment,  in  the  construction  of  the  permanent 
bridge.2 

3.  And  such  a  temporary  bridge  having  been  erected  for  the 
bond  *fide  purpose  of  building  the  permanent  bridge,  might  also 
be  used  for  other  purposes,  for  which  alone  it  could  not  have 
been  erected.3 

1  Great  North  of  England,  Clarence  &  Hartlepool  Junction  Railw.  v.  The 
Clarence  Railw.,  1  Collyer,  507. 

2  London  &  Birmingham  Railw.  v.  Grand  Junction  Canal  Co.,  1  Railw.  Cas. 
224. 

s  Priestley  v.  The  Manchester  &  Leeds  Railw.,  2  Railw.  C.  134. 

*687 


378      ENTRY  UPON  LANDS  BEFORE  COMPENSATION  IS  ASSESSED.    §  101. 


SECTION    IX. 

Reservations  to  Land-owners  to  build  private  Railway  across 
public  Railway. 

§  101.  Where  the  special  act  of  a  railway  company  provided, 
that  nothing  in  the  act  contained  shall  prevent  any  owner  or 
occupier  of  any  ground  through  which  the  railway  may  pass 
from  carrying,  at  his  or  their  own  expense,  any  railway,  or  other 
road,  any  cut,  or  canal  which  he  or  they  may  lawfully  make  in 
their  own  land,  across  the  said  main  railway,  within  the  lands  of 
such  owner  or  occupier,  it  was  held,  that  this  provision  was  not 
confined  to  the  owners  or  occupiers  of  such  land,  at  the  time, 
but  was  intended  to  apply  to  all  future  time,  so  long  as  such 
principal  railway  shall  continue,  and  extended  to  all  persons 
owning  or  occupying  lands  adjoining  the  railway,  upon  opposite 
sides,  whenever  the  title  was  acquired,  even  where  they  pur- 
chased the  land  upon  opposite  sides  at  different  times.1 

1  Monkland  &  Kir.  Railw.  v.  Dixon,  3  Railw.  C.  273.  The  Court  here  (H. 
of  L.)  denied  an  interdict  against  such  owner  or  occupier  prolonging  his  rail- 
way for  the  benefit  of  any  persons  with  whom  he  might  make  an  agreement  for 
that  purpose. 


§102. 


BY   JUSTICES    OF    THE   PEACE. 


379 


•CHAPTER    XIV. 

THE   MODE    OF   ASSESSING    COMPENSATION    UNDER    THE    ENGLISH 

STATUTES. 

SECTION    I. 


By  Justices  of  the  Peace. 


1 .  Where  compensation  claimed  does  not  ex- 

ceed £  50. 

2.  Mode  of  enforcing  award. 


3.    Value  of  land  and  injury  accruing  from 
severance  to  be  considered. 


§  102.  1.  By  the  English  statute,  where  the  compensation 
claimed  shall  not  exceed  £  50,  the  same  is  to  be  settled  by  two 
justices.  So,  also,  as  to  damages  claimed  for  lands  injuriously 
affected.  So,  too,  if  the  company  enter  upon  any  private  road 
or  way.  And  justices  may  fix  the  compensation,  in  certain 
cases,  for  the  temporary  use  of  land.  And  the  compensation  to 
tenants  for  a  year,  or  from  year  to  year.  They  may  apportion 
the  rent,  too,  where  the  whole  land  is  not  taken.  In  some  of 
these  cases  their  jurisdiction  extends  beyond  £50. 

2.  The  mode  of  enforcing  payment  of  money  awarded  by 
such  justices,  is  to  obtain  an  order,  which  may  be  enforced  by 
distress,  upon  the  goods  and  chattels  of  the  party  liable.  The 
certiorari  is  taken  away  in  such  cases,  but  an  order  of  such  jus- 
tices may  still  be  brought  up,  to  be  quashed,  for  want  of  juris- 
diction.1 

3.  The  justices  are  to  take  into  consideration  the  value  of  the 
land,  and  any  injury  which  may  accrue  from  severance. 

1  See  the  subject  discussed  post,  §§202,  203. 

*688 


380 


MODE   OF   ASSESSING   COMPENSATION.  §  103, 104. 


*SECTION    II. 

By  Surveyors. 

§  103.  The  assessment  of  compensation  by  surveyors,  under 
the  English  statutes,  is  merely  provisional  in  most  cases,  as 
where  the  party  is  out  of  the  kingdom,  or  cannot  be  found,  two 
justices  are  required  to  nominate  an  able  practical  surveyor,  who 
is,  under  certain  solemnities,  required  to  make  a  valuation  of 
the  land  taken  or  injuriously  affected,  the  amount  of  which  the 
company  are  required  to  deposit  in  the  bank,  before  proceeding 
with  the  works.  And  if  such  party  be  dissatisfied  with  the  sum 
thus  deposited,  he  may,  before  applying  to  Chancery  for  the 
money,  require  the  question  to  be  submitted  to  arbitration,  as 
in  other  cases  of  disputed  compensation.  Surveyors  are  re- 
quired to  assess  damages  for  severance  of  land,  the  same  as  jus- 
tices of  the  peace.1 

SECTION    III. 
By  Arbitration. 


1.  May  be  claimed  in  cases  exceeding  juris- 

diction of  justices  of  the  peace. 

2.  How  made  compulsory. 

3.  What  form  of  notice  is  sufficient. 
n.  5.  Analogous  American  cases. 

4.  Arbitrator's  power  limited  to  award  of  pe- 

cuniary compensation. 

5.  Where  land-owner  gives  no  notice,  company 

may  treat  it  as  case  of  disputed  compen- 
sation. 

6.  Similar  rule  under  Massachusetts  statute 

regarding  alteration  of  highways. 


7.  And  land-owners  may  recover  without  wait- 

ing for  selectmen  to  act. 

8.  Company  estopped  in  such  case  from  de- 

nying that  road  was  constructed  by  their 
servants.    Embankments  part  of  the  rail- 
way. 
9.  Finality  of  award. 

10.  May    employ    experts.      Damages    em- 

braced. 

1 1 .  Construction  of  general  award. 


§  104.  1.  By  the  English  statutes,  if  the  amount  of  compen- 
sation claimed  exceed  the  jurisdiction  of  two  justices,  any  party 
claiming  compensation  may  compel  an   arbitration,  by  taking 


1  Hodges  on  Railways,  250,  251,  252. 


♦689 


§  104.  BY   ARBITRATION.  381 

the  requisite  steps  in  due  time.  Unless  both  parties  concur  in 
the  same  arbitrator,  each  party,  upon  the  request  of  the  other, 
is  required  to  name  one.  The  appointment  of  the  arbitrator  is 
to  be  under  the  hand  of  the  party,  and  delivered  to  the  arbitra- 
tor, and  is  to  be  deemed  a  submission  by  such  party.  Such 
submission  is  irrevocable,  even  by  the  death  of  the  party. 

2. "If  either  party  neglect,  for  fourteen  days,  after  request  by 
the  other  party  to  name  an  arbitrator,  one  may  be  named  by 
the  other  party,  who  shall  decide  the  controversy.  If  either 
party  name  an  arbitrator  who  is  incompetent,  the  other  party 
must  retire  from  the  arbitration,  or  he  will  be  bound  by  his  ac- 
quiescence.1 The  secretary  of  a  railway  company,  by  the  Eng- 
lish statutes,  would  seem  to  *  have  power  to  bind  the  company, 
by  signing  the  submission,  whether  the  arbitration  is  compulsory 
or  not.'2 

3.  It  was  held  that  the  appointment  of  an  arbitrator  or 
referee  implied  the  notification  of  such  appointment  to  the 
other  party  within  the  time  limited  in  the  submission,  or  the 
doings  of  such  referee  were  void.3  And  not  only  so,  but  the 
notice  must  be  explicit.  It  is  not  sufficient  to  say,  "  Take  notice, 
that  it  is  my  intention  to  nominate  S.  M.,"  notwithstanding  it 
was  added,  "  if  the  company  fail  to  appoint,  I  the  said  T.  B. 
will  appoint  S.  M.  to  act  on  behalf  of  both  parties." 4  And  in 
this  case  it  is  said,  it  would  seem  that  the  appointment  by  the 
claimant  of  an  arbitrator  to  act  for  both  parties,  is  not  valid, 
unless  he  has  previously  appointed  an  arbitrator,  on  his  part, 
and  notified  such  appointment  to  the  company.  There  should 
be  two  separate  appointments,  although  it  may  be  of  the  same 
person,  it  is  here  suggested.5 

1  In  re  Eliott,  2  Dp  G.  &  Sm.  1 7. 

*  Collins  v.  South  Staffordshire  Raihv.  Co.,  21  Law  J.  (Ex.),  247;  s.  c.  12 
Eng.  L.  &  Eq.  5G5. 

3  Tewt).  Harris,  11  Q.  B.  7. 

4  Bradley  v.  London  &  N.  W.  Railw.  Co.,  5  Exch.  769. 

6  But  where  both  parties  petition  for  a  jury  to  revise  the  damages,  one  war- 
rant is  sufficient.  Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91.  And  if  two 
warrants  are  issued,  the  sheriff  should  execute,  and  return  them  as  one.  Id. 
And  where  there  are  several  applications,  which  by  statute  are  to  be  determined 
by  one  jury,  the  proper  mode  is  to  issue  but  one  warrant  to  the  sheriff,  but  if 

*G90 


382  MODE   OF   ASSESSING   COMPENSATION.  §  104. 

4.  The  arbitrator  has  no  power  beyond  the  awarding  of  a 
pecuniary  compensation  for  the  land  taken  by  the  company,  and 
cannot  direct  what  right  of  way  shall  remain  in  the  tenant  to 
the  portion  of  land  not  taken.6  Nor  can  he  apportion  the  rent  to 
the  tenant.6 

5.  If  the  land-owner  gives  no  notice  of  claim,  in  reply  to  the 
notice  to  treat,  the  company  may  treat  it  as  a  case  of  disputed 
compensation.7  If  the  compensation  claimed  be  less  than  50/.,  it 
may  be  settled  by  two  justices.  But  if  more  than  50/.  be  claimed, 
or  offered,  and  the  claimant  desire  to  have  it  settled  by  arbitra- 
tion, it  is  at  his  option,  and  he  must  give  notice  of  such  desire 
before  the  company  issue  their  warrant  to  the  sheriff  to  summon 
a  jury  to  assess  the  compensation,  which  they  may  do  in  ten 
days  after  giving  the  claimant  notice  that  they  shall  do  so,  unless 
in  the  mean  time  he  elect  to  have  the  matter  settled  by  arbitra- 
tion.7 

*  6.  And  under  the  Massachusetts  statute,  giving  railways  the 
right  to  alter  highways,  upon  giving  notice  to  the  selectmen  of 
the  towns  where  such  highways  are  situated,  and  conforming  to 
their  requirements,  or  the  decision  of  the  county  commissioners, 
in  regard  to  the  alteration  of  the  highway,  it  was  held,  that  if  the 
selectmen  give  no  notice  to  the  company,  as  to  what  alterations 
they  require,  the  presumption  is,  that  they  require  none,  but 
leave  the  whole  matter  to  the  company. 

7.  And  to  entitle  adjoining  land-owners  to  recover  damages 
of  the  railway  under  the  statute  of  Massachusetts,  it  is  not  neces- 
sary that  the  selectmen  should  have  acted  in  the  premises.  The 
remedy  in  such  case  is  not  by  an  action  against  the  town,  but  by 
proceedings  under  the  statute  against  the  company.8 

8.  In  such  case  the  company  are  estopped  to  deny,  that  the 
construction  of  their  road,  as  in  fact  made,  was  done  by  their 
servants  in  compliance  with  the  requirement  of  the  charter.8 
And  embankments  made  by  them  for  the  purpose  of  carrying 

several  warrants  issue  irregularly,  yet  if  the  officer  summon  a  single  jury,  who 
hear  and  determine  each  case,  their  verdicts  will  not  be  set  aside  for  such 
irregularity.     Wyman  v.  Lexington  &  West  Cambridge  Railw.  13  Met.  316. 

6  Ware  v.  Regent's  Canal  Co.,  25  Eng.  L.  &  Eq.  444. 

'  8  &  9  Vict.  ch.  18,  §§  21,  22,  23,  38. 

8  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107. 
*691 


§  104.  BY   ARBITRATION.  383 

a  highway  over  the  railway,  are  to  be  regarded  as  a  part  of  the 
railway.8 

9.  By  a  submission  to  arbitration  it  was  provided  that  the 
arbitrator  should  determine  what  sum  should  be  paid  for  the 
purchase  of  land,  and  what "  other,  if  any,  sum  for  severance  dam- 
age, and  the  arbitrator  after  reciting  "  the  submission,  and  that  he 
had  considered  the  matters  so  referred  to  him,  awarded  a  certain 
sum  to  be  paid  for  the  purchase  of  the  land,  without  saying  any- 
thing about  severance-damage.  It  was  held  that  the  award  was 
final  and  good,  that  the  arbitrator  by  his  silence  negatived  any 
right  to  compensation  on  account  of  severance-damage.9 

10.  A  submission  to  arbitration  under  the  English  statute  for 
assessing  land  damages  is  not  revoked  by  the  death  of  the  land- 
owner.10 It  was  here  considered  that  the  award  was  valid  al- 
though not  made  within  the  statute  period  of  three  months  ;  that 
the  arbitrator  may  employ  an  expert  and  consult  men  of  science, 
if  necessary;  that  the  right  to  compensation  extends  to  any  land 
injured  by  the  severance  of  that  which  was  taken,  or  by  the 
works  which  the  company  is  authorized  to  construct,  and  may 
include  damages  likely  to  be  caused  to  the  tenants  of  the  land- 
owner. The  right  to  compensation  depends  on  cause  and  effect, 
and  not  on  "  proximity  or  distance." 

11.  The  award  of  a  gross  sum  for  damages  for  drainage  which 
lessened  a  waterpower  upon  which  a  mill  had  been  erected, 
was  held  presumptively  to  apply  to  the  damage  to  the  mill,  and 
not  to  the  unemployed  waterpower,  which  might  be  available  for 
the  proprietor  of  the  other  side  of  the  river.11 

9  In  re  Swansea  Harbor  Trustees,  6  Jur.  N.  S.  979. 

10  Caledonia  Railw.  Co.  v.  Lockhart,  6  Jur.  N.  S.  1311,  in  the  House  of 
Lords. 

11  St.  George  v.  Reddington,  10  Ir.  Ch.  176. 


384 


CONSTRUCTION    OF   RAILWAYS. 


§105. 


♦CHAPTER    XV. 


CONSTRUCTION    OF   RAILWAYS. 


SECTION    I 


Line  of  Railway. — Right  of  Deviation. 


1 .  Manner  of  defining  the  route  in  English 

charters. 

2.  Question  invoiced  stated. 

3.  Plans  only  binding,  when  and  for  the  pur- 

pose referred  to  in  the  act. 

4.  Contractor  bound  by  deviation,  unless  he 

object. 

5.  Courts  of  equity  will  not  enforce  contract 

against  public  security. 

6.  Right  to  construct  accessory  ivories. 

7  8.  Company  may  take  lands  designated, 
in  their  discretion. 

9.  Equity  cannot  enforce  contract  not  incor- 
porated into  the  act. 

10.  Right  of  deviation  lost  by  election. 

11.  Railway   between  tivo  towns,  extent   of 

grant. 


12.  Grant  of  land  for  railway  includes  ac- 

cessories. 

13.  Route  designated  need  not   be  followed 

literally. 

14.  Terminus  being  a  toivn,  is  not  extended, 

as  the  town  extends. 

15.  Party  accepting  compensation  waives  in- 

formality. 

16.  Powers  limited  in  time  expire  with  limit- 

ation. 

17.  Construction  of  charter  as  to  extent  of  route. 

18.  Map   may    be   made   to  yield    to   other 

grounds  of  construction. 
19\  Power  to  change  location  must  be  exercised 

before  construction. 
20.  Binding  force   of  plans   made  part   of 

charter. 


§  105.  1.  The  English  railway  acts  are  granted  altogether, 
after  full  surveys  of  the  route  and  with  reference  to  definite 
plans  of  the  engineers,  which,  when  referred  to  generally  in  the 
act  thus  become  so  far  a  part  of  it  as  to  be  binding  upon  the 
company  to  the  extent  of  determining  the  datum  line,  and  the 
line  of  railway  measured  with  reference  to  that  datum  line  ;  and 
the  level  of  the  railway,  with  reference  to  the  datum  line  ;  but 
not  the  surface  levels,  unless  expressly  so  provided  in  the  act.1 

1  North  British  Railw.  v.  Tod,  4  Railw.  C.  449.  This  was  an  appeal  from  the 
judgment  of  the  Court  of  Sessions  in  Scotland.  The  opinions  of  Lord  Lynd- 
hurst  Chancellor,  and  of  Lord  Campbell,  Ch.  J.,  certainly  exhibit  the  rule  of 
the  English  law  upon  this  subject  very  fully  and  very  ably.  Lord  Lyndhurst 
says :  "  Now  as  to  the  effect  of  plans  exhibited  previous  to  the  contract  being 
made  or  previous  to  the  act  of  parliament  being  obtained,  it  does  seem,  from 
cases  which  have  occurred,  both  in  Scotland  and  this  country,  that  the  rule  of 
*186 


§  105.  LINE   OF   RAILWAY.  —  RIGHT   OF  DEVIATION.  385 

*  2.  The  question  in  this  last  case  l  was.  in  regard  to  the  right 
to  intersect  an  approach,  leading  to  a  mansion-house,  at  a  dif- 

the  courts  in  this  country,  and  in  the  other,  is  no  longer  a  matter  of  any  doubt 
or  dispute.  If  a  contract  or  an  act  of  parliament  refer  to  a  plan,  to  the  extent 
that  the  act  refers  to  the  plan,  and  for  the  purpose  for  which  the  act  or  contract 
refers  to  the  plan,  undoubtedly  it  is  part  of  the  contract  or  part  of  the  act.  As 
to  that  there  is  no  dispute.  A  contract,  or  an  act  of  parliament,  either  does  not 
refer  to  a  plan  at  all,  or  it  refers  to  it  for  particular  purposes.  It  has  been  con- 
tended, both  in  Scotland  and  in  England,  that  the  defendant  in  the  suit,  or 
those  who  claim  the  benefit  of  the  provisions  of  an  act  of  parliament,  previous 
to  this  enactment  being  made,  or  the  contract  being  concluded,  have  repre- 
sented that  the  works  are  to  be  carried  on  in  a  particular  mode,  upon  a  plan 
shown  previous  to  the  powers  being  obtained  under  the  act,  or  the  contract  be- 
ing concluded,  and  that  the  party  obtaining  the  act,  or  obtaining  the  contract,  is 
bound  by  such  representation.  There  was  a  case  very  much  considered  in  Scot- 
land, the  case  of  The  Feoffees  of  Heriot's  Hospital  v.  Gibson,  2  Dowl.  301;  and 
several  cases  have  occurred  in  the  courts  of  equity  in  this  country.  It  was  my 
fortune  to  have  to  consider  the  matter  very  minutely  in  the  case  of  Squire  v. 
Campbell,  1  My.  &  Cr.  459,  in  which  I  thought  it  my  duty  to  review  all  the  cases 
that  had  occurred  in  the  one  country  and  in  the  other,  for  the  purpose,  if  possi- 
ble, of  establishing  a  rule  which  might  be  a  guide  on  future  occasions  when  sim- 
ilar cases  should  occur ;  and  I  found  that,  certainly,  what  had  been  very  much 
the  opinion  of  the  profession  in  this  country,  namely,  that  the  parties  were 
bound  by  the  exhibition  of  such  plans,  had  met  with  a  very  wholesome  correc- 
tion by  the  doctrine  laid  down  by  Lord  Eldon,  and  Lord  Redesdale,  in  the  case 
of  Heriot's  Hospital,  decided  by  this  House.  Under  the  authority  of  that  case, 
in  which  the  point  was  very  distinctly  raised,  and  deliberately  decided  upon,  I 
came  to  the  conclusion  that  there  was  no  ground  for  equitable  interposition. 
Now,  my  Lords,  not  relying  upon  the  authority  of  Squire  v.  Campbell,  but  rely- 
ing, as  we  are  bound  to  do,  upon  the  case  of  The  Feoffees  of  Heriot's  Hospital, 
I  consider  that  to  be  the  rule  to  which  the  courts  of  this  country,  and  the  Court 
of  Sessions  in  Scotland,  and  this  House,  must  hereafter  adhere.  Taking  that, 
then,  to  be  the  rule  in  examining  the  facts  of  this  case,  and  the  act  of  parlia- 
ment upon  which  the  question  turns,  we  are  not  to  look  at  what  was  represented 
upon  the  plan,  except  so  far  as  its  representation  is  incorporated  in,  and  made 
part  of,  the  act  of  parliament ;  and  the  real  question,  therefore,  turns  upon  this, 
whether  the  acts  of  parliament  do  or  do  not  make  the  datum  line,  and  line  of 
railway  with  reference  to  that  datum  line,  the  subject-matter  of  these  enact- 
ments, and  the  rule  by  which  the  rights  of  the  parties  are  to  be  regulated,  or 
whether  it  also  includes  the  surfaces  which,  in  this  instance,  accidentally,  no 
doubt,  had  been  very  much  misrepresented  upon  the  plan. 

"I  say,  then,  that  a  case  does  arise  upon  these  provisions  of  the  act,  in  which 
the  plan  indeed  is  referred  to,  but  is,  in  the  terms  of  the  act  of  parliament,  re- 
ferred to  only  for  the  purpose  of  ascertaining  the  line  of  the  railway,  with  refer- 
ence to  the  datum  line.    It  is  not  referred  to  with  reference  to  any  surface  leTel. 

VOL.  i.  25  *187 


386  CONSTRUCTION   OF  RAILWAYS.  §  105. 

ferent  *  level  from  that  laid  down  in  the  parliamentary  plans,  in 
which  it  appeared  as  a  cutting  of  fifteen  feet,  and  the  way  raised 

The  plan,  therefore,  is  entirely  out  of  the  enactment,  and  is  not  to  be  looked  at 
for  the  purpose  of  construing  the  enactment  as  to  any  part  of  it,  except  so  far 
as  it  is  referred  to  and  incorporated  in  the  act.  Arriving  at  that  construction 
of  the  rule  upon  the  provisions  of  the  two  acts  to  which  I  have  referred,  and 
applying  it  to  the  principle  which  has  been  established  in  the  cases  I  have  men- 
tioned, we  have  no  difficulty  in  coming  to  the  conclusion,  that  the  application  of 
that  principle  will  necessarily  lead  to  the  construction  of  the  clauses  to  which  I 
have  referred.  The  plan  is  binding,  to  the  extent  of  determining  the  datum  line, 
and  the  line  of  railway  measured  with  reference  to  that  datum  line,  but  not  with 
reference  to  the  surface  levels  of  the  land,  because  the  act  does  not  apply  it  for 
that  purpose,  but  cautiously  confines  the  enactment  to  the  other  plans  to  which 
I  have  referred. 

"  Acting,  therefore,  upon  the  principle  so  established,  and  with  reference  to 
the  construction,  or  what  I  conceive  to  be  the  construction,  to  be  put  upon  these 
sections,  although  we  cannot  but  greatly  lament  the  hardships  which,  in  all  prob- 
ability, these  circumstances  have  imposed  upon  the  respondent,  in  having  his 
land  interfered  with  in  a  manner  which  he  did  not  at  all  anticipate  ;  yet,  when 
we  are  called  upon  to  consider  whether  the  Court  of  Sessions  is  correct  or  not, 
we  are  bound  to  look  to  see  what  are  the  powers  which  these  acts  vest  in  the 
company ;  and  for  the  reason  I  have  explained,  I  come  to  the  conclusion  that 
the  company  have  not  exceeded  those  powers,  and  do  not  propose  to  exceed 
those  powers,  in  the  plans  that  they  have  formed,  and  that  the  Court  of  Sessions 
has  been  in  error  in  granting  the  interdict." 

Lord  Campbell.  —  "I  acknowledge  that  I  come  to  the  conclusion  at  which  I 
have  arrived  with  very  great  reluctance.  It  seems  to  me  to  be  a  case  of  very 
great  hardship  upon  the  respondent.  But  when  we  come  to  consider  what  the 
law  upon  the  subject  is,  I  feel  bound  to  concur  in  the  opinion  which  has  been 
expressed.  What  is  the  legal  construction  of  the  act  of  parliament  ?  Does  the 
company,  or  does  it  not,  propose  to  exceed  the  powers  which  the  acts  of  parlia- 
ment confer  upon  it  ?  Now  it  is  admitted,  that  if  the  deviation  is  to  be  calcu- 
lated from  the  datum  line  alone,  they  (the  company)  do  not  propose,  either 
vertically  or  laterally,  to  exceed  the  powers  of  deviation  which  are  conferred 
upon  them.  Well,  then,  that  raises  the  question  whether  those  powers  of  devi- 
ation are  to  be  calculated  from  the  datum  line  alone,  or  whether  the  surface- 
level  is  to  be  taken  into  consideration,  and  my  opinion  is,  that  the  act  does 
refer  everything  to  the  datum  line.  I  think  it  is  evident  that  the  11th  section 
clearly  makes  the  datum  line  alone  that  which  is  to  be  regarded.  The  word 
'levels,'  in  the  plural  number,  really  does  not  at  all  include  the  surface-levels. 
It  means  merely  the  levels  of  the  datum  line,  which  point  out  the  course  the 
railway  is  to  go.  If  that  be  so,  the  company  do  not  propose  to  do  anything  that 
they  are  not  authorized  to  do,  according  to  the  letter  of  the  act  of  parliament. 

"  There  certainly  was  a  representation  made  here  on  the  part  of  the  company, 
when  they  proposed  to  bring  in  the  act,  by  which  they  intimated  that,  at  that 
*198 


§  105.  LINE   OF   RAILWAY.  —  RIGHT   OF  DEVIATION.  387 

upon  a  *  bridge  two  feet.  The  owner  of  the  house,  it  seems,  had 
opposed  the  railway  being  carried  through  his  avenue,  but,  rely- 
ing upon  the  representations  contained  in  the  plan  and  sections, 
was  induced  to  abstain  from  opposing  the  bill.  The  line  of 
deviation  is  marked  upon  the  plan,  and  is  by  the  act  limited  to 
ten  yards  in  passing  through  villages,  and  one  hundred  yards  in 
the  open  country. 

3.  In  this  case  it  was  decided,  that  the  plans  were  only  bind- 
ing upon  the  company  to  the  extent  to  which  they  were  referred 
to  in  the  act,  and  that  it  made  no  difference  that  the  deposited 
plans  were  so  incorrect  as  altogether  to  mislead  the  owner  of  the 

time,  the  intention  was  that  the  railway  should  be  fifteen  feet  four  inches  below 
the  surface  of  the  respondent's  property  at  the  point  of  intersection ;  and  that 
the  bridge  by  which  his  approach  should  pass  over  the  railway,  would  not  be 
more  than  three  feet.  But  this  was  entirely  an  intimation,  on  the  part  of  the 
company,  that  such  was  their  intention.  An  act  of  parliament  of  this  sort  has, 
by  Lord  Eldon  and  all  other  judges  who  have  considered  the  subject,  been  con- 
sidered as  a  contract.  Well,  then,  what  took  place  was  a  negotiation,  —  it  was 
not  a  contract.  We  must  disregard  it,  and  we  must  look  to  see  what  the  con- 
tract was.  The  contract  is  to  be  gathered  from  the  words  of  the  act  of  parlia- 
ment ;  and  that  brings  us  to  the  question  that  I  first  considered,  what  is  the 
construction  of  the  act  of  parliament  ?  That  act  of  parliament  must  be  con- 
sidered as  overruling  and  doing  away  with  everything  that  had  taken  place  prior 
to  the  time  when  the  act  passed,  and  renders  the  representation  or  proposal  of 
the  company,  pending  the  act,  of  no  avail.  Many  cases  have  occurred  in  the 
courts  of  common  law  in  which  it  has  been  held,  that  everything  that  takes  place 
before  a  written  contract  is  signed  is  entirely  to  be  disregarded  in  construing 
the  contract.  Now,  if  the  respondent  had  been  cautious,  he  would  have  done 
what  I  would  strongly  recommend  to  all  gentlemen  hereafter  to  do,  under  sim- 
ilar circumstances,  which  is,  to  have  a  special  clause  introduced  into  the  act  of 
parliament  to  protect  their  rights." 

See  also  Beardmer  v.  The  London  &  N.  Western  Railw.,  5  Railw.  C.  728.  The 
same  rule  obtaius  in  this  country.  Boston  &  Pro  v.  Railw.  v.  Midland  Railw.,  1 
Gray,  340  ;  Commonwealth  v.  Fitchburg  Railw.  8  Cush.  240.  It  seems  that  the 
deviation  of  five  feet,  which,  by  the  11th  section  of  the  Railways  Clauses  Act  of 
1845,  is  allowed  in  regard  to  levels,  is  to  be  reckoned  with  reference  to  the  level 
of  the  datum  line,  and  not  with  reference  to  the  surface-levels  delineated  on  the 
plans.  And  any  greater  deviation  in  regard  to  levels,  which  may  be  obtained, 
under  certain  conditions,  in  certain  emergencies,  is  subject  to  the  discretion  of 
the  Railway  Commissioners ;  and  at  the  suit  of  land-owners,  affected  by  such 
deviation,  beyond  the  limits  allowed  by  the  act,  the  Court  of  Chancery  will  re- 
strain the  company  from  proceeding  until  they  obtain  the  judgment  of  such  com- 
missioners.    Pearce  v.  Wycombe  Railw.,  19  Eng.  L.  &  Eq.  122. 

*189 


388  CONSTRUCTION   OF   RAILWAYS.  §  105. 

lands,  in  reference  to  the  manner  in- which  his  property  would  be 
affected  by  the  railway  works.  The  plans  not  being  referred  to 
in  the  act,  or  only  referred  to,  as  in  the  present  case,  to  determine 
the  datum  line  with  reference  to  lateral  deviation,  could  not  con- 
trol beyond  the  matter  of  lateral  deviation. 

4.  This  subject  is  incidentally  connected  with  the  performance 
of  construction  contracts.  But  it  has  been  held,  that  where  the 
company  deviate  from  the  intended  line  of  the  road,  even  beyond 
what  was  permitted  by  their  act,  with  the  consent  of  the  land- 
owner, and  the  contractor  never  objected  to  the  deviation,  but 
continued  to  receive  certificates  of  estimates,  and  payments,  in 
*  precisely  the  same  mode  in  which  he  would  have  received  them 
had  the  deviation  not  taken  place,  that  it  did  not  affect  his  lia- 
bility upon  the  contract.2 

5.  A  reference,  in  the  special  act,  to  the  deposited  plans,  for 
one  purpose,  does  not  make  them  binding  for  all  purposes.3  So 
too,  where,  by  the  general  acts,  a  railway  company  has  power  to 
pass  highways  and  other  roads,  by  bridges,  or  excavation,  in 
their  discretion,  but  their  special  act  gives  them  power  to  pass 
them  on  a  level,  this  will  not  compel  them  to  do  so  ;  they  may 
still  exercise  the  power  conferred  by  the  general  acts.  And  a 
special  agreement  with  land-owners,  that  they  will  pass  such 
roads  on  a  level,  being  a  contract  in  derogation  of  public  right, 
inasmuch  as  the  public  security  is  greatly  jeoparded  thereby,  will 
not  be  specifically  enforced  in  a  court  of  equity.4 

6.  The  extent  of  deviation  is  to  be  measured  from  the  line 
delineated  upon  the  plans  to  the  actual  medium  filum  of  the  rail- 
way as  constructed,  and  the  fact  of  the  embankments  extending 
beyond  that  distance  is  no  violation  of  the  right  of  deviation 

*  Ranger  v.  The  Great  Western  Railw.,  27  Eng.  L.  &  Eq.  35. 

8  Reg.  v.  Caledonia  Railw.,  3  Eng.  L.  &  Eq.  285.  Where  there  is  a  power 
given  for  deviation  in  the  construction,  which  would  render  some  portion  of  the 
delineated  surveys  impracticable,  it  must  be  taken,  as  of  necessity,  that  the 
legislature  intended  the  omission  of  such  particulars  as  became  impracticable 
in  a  given  contingency  allowed  by  the  act. 

*  Braynton  v.  The  London  &  North  W.  Railw.,  4  Railw.  C.  553.  But  the 
Lord  Chancellor,  upon  appeal,  considered  that  the  agreement  only  extended  to 
the  land  to  be  purchased,  and  that  it  contained  nothing  intended  to  limit  the 
powers  given  to  the  company  by  the  general  acts. 

*190 


§105.  LINE   OF   RAILWAY.  —  RIGHT   OF  DEVIATION.  389 

allowed  in  the  act.5  Where  a  tunnel  is  marked  upon  the  plans 
referred  to  in  the  act,  it  must  be  made  in  the  exact  position  in- 
dicated, and  the  general  right  of  deviation  does  not  apply.6  But 
the  company  may  take  lands  within  the  line  of  deviation  for  a 
branch  railway.7  Under  an  act  allowing  land  to  be  "  taken 
when  necessary  for  making  and  maintaining  the  said  railway 
and  works,"  it  was  held  that  the  company  might  take  lands  for 
forming  or  enlarging  stations,  or  places  for  carriages  to  collect 
and  wait  till  trains  are  ready  to  start ;  and  the  Lord  Chancellor 
said,  in  one  case,8  "  The  *  term  railway,  by  itself,  includes  all 
works  authorized  to  be  constructed  ;  and  for  the  purpose  of  con- 
structing the  railway,  the  company  are  authorized  to  construct 
such  stations  and  other  works  as  they  may  think  proper." 

7.  And  it  would  seem  that,  where  lands  are  designated  by 
numbers  on  the  plans,  although  not  altogether  within  the  line  of 
deviation,  they  may  be  taken  by  the  company  when  necessary 
for  stations.9 

And  it  has  recently  been  decided  in  the  House  of  Lords,  that 
where  the  legislature  authorized  a  railway  company  to  take,  for 
the  purpose  of  their  undertaking,  any  lands  specially  described  in 
the  act,  it  constitutes  them  the  judges  as  to  whether  they  will  or 
will  not  take  those  lands,  provided  they  take  them  bond  fide,  with 
the  object  of  using  them  for  the  purposes  authorized  by  the  legis- 
lature, and  not  for  any  sinister  or  collateral  purpose.10     And 

6  Doe  d.  Payne  v.  The  Bristol  &  Exeter  Railw.,  2  Railw.  C.  75  ;  s.  c.  6  M.  &  W. 
320;  Doe  d.  Armistead  v.  The  North  Staffordshire  Railw.,  4  Eng.  L.  &  Eq.  216. 

6  Little  v.  The  Newport,  Ab.  &  Hereford  Railw.,  14  Eng.  L.  &  Eq.  309. 

7  Sadd  v.  The  Maldon,  Witham  &  B.  Railw.,  2  Eng.  L.  &  Eq.  410. 

8  Cother  v.  Midland  Railw.,  2  Phillips,  469. 

9  Crawford  v.  Chester  &  Holyhead  Railw.,  11  Jur.  917;  1  Shelford,  Bennet's 
ed.  617.  But  the  deviation  is  not  authorized  for  the  purpose  of  taking  materials 
alone.     Bentinck  v.  Norfolk  Estuary,  32  Law  Times,  29. 

10  Stockton  &  Darlington  Railw.  Co.  v.  Brown,  6  Jur.  N.  S.  1168.  But  a 
railway  cannot  take  the  fee  of  land  for  the  purpose  of  supplying  soil  to  build 
an  embankment.  Eversfield  v.  Midsussex  Railw.,  1  Gif.  153 ;  s.  c.  affirmed,  5 
Jur.  N.  S.  776  ;  s.  c.  3  De  G.  &  J.  286.  Nor  can  land  be  taken  within  the  range 
of  the  powers  conceded  by  the  act,  except  for  the  exclusive  purpose  of  the 
works  named  in  the  act,  and  if  any  subsidiary  object  is  embraced  in  the  pur- 
pose of  taking,  as  to  give  a  more  convenient  road  for  an  ordinary  land-owner, 
who  was  to  pay  part  of  the  expense,  the  company  will  be  restrained  by  injunc- 
tion.    Dodd  v.  Salisbury  &  Yeoville  Railw.  Co.,  1  GifT.  158 ;  5  Jur.  N.  S.  782. 

•191 


390  CONSTRUCTION   OF   RAILWAYS.  §  105. 

after  referring  the  question,  as  to  the  propriety  or  right  to  take 
the  land,  to  an  engineer,  who  decided  against  the  company  and 
in  favor  of  the  land-owner,  the  court  ultimately  held  that  neither 
the  opinion  of  the  engineer  nor  of  the  court  could  curtail  the 
power  of  the  company  in  respect  to  the  quantity  of  land  which 
the  company,  bond  fide  acting  under  its  statutory  powers,  sought 
to  obtain. 

8.  And  where,  by  a  special  act,  a  company  were  empowered 
to  erect  a  market  house  on  land  described  in  the  deposited  plans, 
it  was  held,  that  as  the  land  of  the  plaintiff  was  described  in  the 
plans,  and  as  therefore  it  might  be  wanted,  the  company  were 
authorized  to  take  it,  and  that  the  company  were  to  be  regarded 
as  the  proper  judges  of  what  lands  were  necessary  for  the  works.11 

9.  The  trustees  of  a  turnpike-road  agreed  to  assent  to  a  bill  in 
parliament  for  the  formation  of  a  railway,  on  the  condition  that 
the  railway  should  pass  over  the  road  at  a  sufficient  elevation, 
and  the  road  be  not  lowered,  or  otherwise  prejudiced.  It  was 
held  that  this  modified  assent,  not  being  embodied  into  any 
agreement  between  the  trustees  and  company,  or  incorporated 
into  the  act,  afforded  no  equitable  ground  for  restraining  the 
company  from  the  exercise  of  all  their  powers  under  their  act ; 
that  the  company  were  authorized  to  sink  the  original  surface 
of  a  turnpike-road  to  gain  the  requisite  elevation  for  the  arch  of 
a  bridge  to  carry  the  railway  over  the  road,  notwithstanding  the 
effect  might  be  to  render  the  road  liable  to  be  occasionally 
flooded.12  Any  omission,  misstatement,  or  erroneous  descrip- 
tion in  the  parliamentary  plans  referred  to  in  the  act,  may  be 
corrected  on  application  to  two  justices,  in  the  mode  prescribed 
in  the  act.13 

10.  By  statute,  in  some  of  the  states,  a  railway  company  who 
file  the  location  of  their  road  in  the  requisite  office,  are  allowed 
to  deviate,  to  any  extent  consistent  with  their  charter,  in  the 
course  of  construction.14     But  it  has  been  held,  that  after  once 

11  Richards  v.  The  Scarborough  Public  Market  Co.,  23  Eng.  L.  &  Eq.  343. 

12  Aldred  v.  The  North  Midland  Railw.,  1  Railw.  C.  404. 

13  Taylor  v.  Clemson,  3  Raihv.  C.  65,  shows  the  mode  of  procedure  in  such 
cases. 

14  The  Boston  &  Providence  Railw.  v.  The  Midland  Railw.,  1  Gray,  340. 
The  charter  gave  the  company  power  to  construct  their  road  in  five  mile  sec- 


§105.  LINE   OF  RAILWAY.  —  RIGHT   OF  DEVIATION.  391 

locating  *  their  road,  their  power  to  re-locate,  and,  for  that  pur- 
pose to  occupy  the  land  of  another  or  the  public  street,  ceases.15 

11.  It  has  been  held,  that  a  grant  to  a  railway  company  to  con- 
struct their  road  between  two  towns,  gave  them  implied  authority 
to  construct  a  branch  to  communicate  with  a  depot  and  turn-table, 
on  a  street  in  one  of  the  towns  (New  Orleans)  off  the  direct  line.16 

12.  The  grant  to  take  land  implies  power  to  take  buildings.17 

And  a  grant  to  take  land  for  the  company's  road  implies  the 

right  to  take  land  for  all  the  necessary  works  of  the  company, 

* 

tions,  but  not  to  begin  the  work  within  a  prescribed  distance  of  one  terminus, 
or  until  all  of  its  stock  was  taken  by  responsible  persons,  and  one  hundred  and 
forty  thousand  dollars  paid  into  the  treasury,  it  was  held,  that  this  restriction,  in 
regard  to  the  subscription  and  payment  of  stock,  did  not  fix  a  limitation  upon 
the  company  in  regard  to  building  their  whole  road  net  in  sections. 

The  courts,  in  interpreting  an  act  of  incorporation,  will  not  examine  what 
took  place  while  it  was  passing  through  the  legislature.  Bank  of  Pennsylvania 
v.  The  Commonwealth,  19  Penn.  St.  144.  And  in  Commonwealth  v.  Fitchburg 
Railw.  8  Cush.  240,  it  was  held,  that  the  petitions  to  the  legislature  upon  which 
the  act  was  granted  were  inadmissible  upon  the  question  of  the  construction  of 
the  act,  in  regard  to  the  course  and  direction  of  the  line  of  the  road. 

15  Little  Miami  Railw.  v.  Naylor,  2  Ohio  St.  235.  And  an  authority  to  change 
the  location  of  the  line,  during  the  work,  does  not  imply  power  to  change  it  after 
the  road  is  complete.  Moorhead  v.  Little  Miami  Railw.,  17  Ohio,  340.  The 
same  view  is  maintained  by  Lord  Eldon,  Ch.,  in  Blakemore  v.  Glamorganshire 
Canal  Co.,  1  My.  &  K.  154.  But  a  different  rule  seems  to  be  intimated  in  S.  C. 
Railw.  ex  parte,  2  Rich  434.  But  see  Canal  Co.  v.  Blakemore,  1  CI.  &  Fin.  262 ; 
State  v.  Norwalk  &  Danbury  Turnpike  Co.,  10  Conn.  R.  157;  Turnpike  Co.  v. 
Hosmer,  12  Conn.  R.  364  ;  Louisville  &  Nashville.  Branch  Turnpike  Co.  v.  Nash- 
ville &  Kentucky  Turnpike  Co.,  2  Swan,  282,  where  the  proposition  of  the  text 
is  maintained.  But  in  South  Carolina  Railw.  v.  Blake,  9  Rich.  229,  it  is  held, 
that  a  railway  company  have  the  same  power  to  acquire  land,  either  by  grant 
or  by  compulsory  proceedings,  for  the  purpose  of  varying,  altering,  and  repairing 
their  road,  as  for  the  original  purpose  of  locating  and  constructing  it.  But  that 
the  company  are  not  the  final  arbiters  in  determining  the  exigency  for  taking 
the  land.  The  petition  of  the  company  for  taking  the  land  should  allege  in 
detail  the  necessity  for  taking  it,  and  the  land-owner  may  traverse  these  allega- 
tions, and  in  that  case  this  is  tried  as  a  preliminary  question. 

15  Knight  v.  Carrolton  Railw.,  9  Louis.  Ann.  284 ;  N.  O.  &  C.  Railw.  v.  Sec- 
ond Munic.  of  New  Orleans,  1  Id.  128.  But  where  by  the  charter  of  a  railway 
they  were  authorized  to  construct  their  road  "  from  Charleston  "  to  certain  other 
points,  it  was  held  that  this  gave  them  no  authority  to  enter  the  city,  but  that 
the  boundary  of  the  city  was  the  terminus  a  quo.  Northeast  Railw.  v.  Payne, 
8  Rich.  177. 

"  Brocket  v.  Railway,  14  Penn.  St.  241. 

*192 


392  CONSTRUCTION   OF  RAILWAYS.  §  105. 

such  as  depots,  car  and  engine  houses,  tanks,  repairing  shops, 
houses  for  switch  and  bridge  tenders,  and  coal  and  wood  yards, 
but  not  for  *  the  erection  of  houses  for  servants,  car  and  engine 
factories,  coal-mines,  etc.18 

13.  And  a  charter  allowing  the  company  to  extend  their  line 
to  a  certain  point,  "  thence  running  through  Acton,  Sudbury, 
Stow,  Marlborough,"  &c,  does  not  oblige  the  company  to  locate 
their  road  through  these  towns,  in  the  order  named  in  the  charter. 
And  a  location  of  the  road  from  Acton  through  Stow  to  Sud- 
bury,  and  thence  through  Stow  again  to  Marlborough,  was  held 
to  be  a  sufficient  compliance  with  the  grant.19 

14.  If  the  charter  of  a  railway  limit  the  line  of  construction, 
by  the  boundaries  of  a  borough,  and  the  boundaries  of  such 
borough  are  subsequently  extended,  that  will  not  alter  the  right 
of  the  company  in  regard  to  the  location  of  their  road.20  And 
an  exclusive  grant  for  a  railway  within  certain  limits,  denned  at 
one  terminus  by  a  city,  is  to  be  restrained  to  the  limits  of  the 
city  at  the  date  of  the  grant.21 

15.  A  party  whose  land  was  taken  by  a  railway  company  for 
the  purposes  of  their  road,  and  the  damages  assessed  and  de- 

J8  State  v.  Comm.  of  Mansfield,  3  Zab.  510;  Vt.  Cent.  Railw.  v.  Burlington, 
28  Vt.  R.  193  ;  Nashville  &  C.  Railw.  v.  Cowardin,  11  Humph.  348. 

19  Commonwealth  v.  The  Fitchburg  Raihv.,  8  Cush.  240.  See  also  Brigham 
v.  Agricultural  Branch  Railw.,  1  Allen,  366.  It  seems  agreed  that  slight  devia- 
ations  from  the  route  prescribed  in  the  charter  will  not  release  the  stockholders 
from  the  obligation  of  their  subscriptions ;  but  that  any  substantial  deviation 
will  have  that  effect.  The  precise  line  of  distinction  between  the  two  classes  of 
cases  must  be  left  to  the  construction  of  the  courts  in  each  particular  case.  The 
stockholders  may  enjoin  the  company  in  the  course  of  construction  from  making 
an  essential  deviation,  and  after  the  road  is  completed,  the  company  may,  by 
scire  facias,  be  called  to  account  for  not  building  upon  the  route  indicated  in 
their  charter.  But  where  all  interested  acquiesce  in  the  route  adopted,  until 
their  road  is  completed,  it  will  require  a  very  clear  case  to  induce  the  courts  to 
interfere.  The  following  cases  bear  upon  the  general  question  :  Ashtabula  & 
N.  L.  Railw.  v.  Smith,  15  Ohio  St.  328;  Champion  v.  Memphis  &  C.  Railw. 
Co.,  35  Miss.  R.  692  ;  Fry  v.  Le*.  &  Big  S.  Railw.  Co.,  2  Met.  (Ky.)  314 ; 
Aurora  v.  West,  22  Ind.  R.  88  ;  Smith  v.  Allison,  23  id.  366  ;  Miss.  O.  &  R.  Railw. 
v.  Cross,  20  Ark.  R.  443 ;  Witter  v.  same  Co.,  Id.  463 ;  Illinois  Grand  T.  Railw. 
v.  Cook,  29  111.  R.  237.     See  also  K.  R.  &  R  Railw.  v.  Marsh,  1  7  Wise.  R.  13. 

30  Commonwealth  v.  Erie  &  North  East  Railw.,  27  Penn.  St.  339. 

n  Pontchartrain  Railw.  v.  Lafayette  &  Pont.  Railw.,  10  Louis.  Ann.  741 
*193 


§  105.  LINE   OF  RAILWAY.  —  RIGHT   OF  DEVIATION.  393 

posited  for,  and  accepted  by  him,  with  full  knowledge  of  all  the 
proceedings  and  of  any  defect  therein,  and  who  allowed  the  com- 
pany to  occupy  the  land  and  make  improvements  thereon,  with- 
out remonstrance,  for  two  years,  and  who  then  brought  an  action 
of  trespass  against  the  company,  on  the  ground  that  their  pro- 
ceedings were  irregular  and  void,  was  held  to  have  waived  all 
right  to  object  to  them  on  that  ground.22 

16.  And  where  the  company  by  charter  had  power  to  take  land 
for  engine  and  water  stations,  within  five  years  from  the  date  of 
their  grant,  it  was  held  they  could  not  exercise  such  powers  after 
the  expiration  of  the  time  limited,  although  operating  their  line 
by  horse  power  during  that  time  they  had  not  required  the  ex- 
ercise of  such  powers  on  that  account.23 

17.  A  charter  to  construct  a  railway,  "  to  commence  at  some 
convenient  point  in  the  city  of  Brooklyn,  and  to  terminate  at 
Newtown,  Queen's  county,  —  to  be  located  in  King's  and  Queen's 
counties,  and  its  length  to  be  about  twenty-five  miles  "  ;  there 
being  both  a  town  and  village  of  the  name  of  Newtown,  and  the 
boundary  of  the  town  being  also  the  boundary  of  the  city  of  Brook- 
lyn, it  was  held,  that  the  natural  and  only  consistent  construction 
was,  to  regard  Newtown  as  the  village  of  that  name,  and  thus  ex- 
tend the  railway  through  a  portion  of  both  counties  named,  and 
not  restrict  it  to  the  limits  of  the  city  of  Brooklyn.24 

18.  It  is  here  declared,  that  where  the  charter,  as  applied  to 
the  route  indicated,  defines  a  precise  line,  that  line  becomes  as 
binding  upon  the  company  as  if  it  formed  a  portion  of  the  charter 
itself;  and  that  where  a  map  is  filed  in  conformity  with  the 
charter,  which  does  not  embrace  the  entire  route  indicated  by 
the  charter  as  applied  to  the  subject-matter,  in  order  to  recon- 
cile the  apparent  conflict,  the  map  may  be  regarded  as  intended 
to  give  only  a  portion  of  the  route ;  or  in  case  of  irreconcilable  con- 
flict, the  map  must  yield  to  the  express  provisions  of  the  charter.24 
The  distinction  between  the  application  of  terms  to  indicate  the 
route  of  a  railway  and  to  define  its  termimi,  is  considerably  dis- 
cussed in  a  late  case  in  New  Jersey.25 

52  Hitchcock  v.  Danbury  &  Norwalk  Railw.,  25  Conn.  R.  51 G. 

M  Plymouth  Railw.  Co.  v.  Colwell,  39  Penn.  St.  337. 

54  Mason  v.  Brooklyn  &  Newtown  Railw.  Co.,  35  Barb.  373. 

15  McFarland  v.  Orange  &  Newark  Horse-Car  Railw.  Co.,  2  Beasley,  1 7. 


394 


CONSTRUCTION   OF   RAILWAYS. 


§106. 


19.  A  power  to  change  the  location  of  a  railway,  on  account 
of  the  difficulty  of  construction  and  other  causes,  may  be  exercised 
at  any  time  before  the  construction  is  finished  at  the  particular 
point.-0 

20.  The  lines  and  works  of  a  railway  are  sufficiently  indicated 
by  black  lines  upon  the  plan,  and  dotted  lines  around  them  to 
mark  the  limits  of  deviation.27  And  where  the  deposited  plans 
and  sections  specify  the  span  and  height  of  a  bridge  by  which 
the  railway  is  to  be  carried  over  a  turnpike  road,  the  company 
will  not,  in  the  construction  of  the  bridge,  be  allowed  to  deviate 
from  the  plans  and  sections.28 


SECTION    II. 


Distance,  hoio  measured. 


1 .  This  is  affected  by  subject-matter. 

2.  Contracts  to  build  railway,  by  rate  per 

mile. 


3.  General  rule  to  measure  by  straight  line. 

4.  Same  rule  in  regard  to  turnpike-roads. 


§  106.  1.  Questions  of  some  perplexity  sometimes  arise  in  re- 
gard to  the  mode  of  measuring  distance,  in  a  statute  or  contract. 
The  import  of  terms  defining  distance  will  be  sometimes  con- 
trolled by  the  context,  or  the  subject-matter.  In  one  case,1 
where  the  assignor  of  the  lease  of  a  public-house  in  London 
covenanted  that  he  would  not  keep  a  public-house  within  half 
a  mile  from  the  *  premises  assigned,  it  was  held  that  the  dis- 
tance should  be  computed  by  the  nearest  way  of  access. 

2.  And  contracts  to  be  paid  for  constructing  a  turnpike,  or 
railway,  a  given  price  by  the  mile,  would,  ordinarily,  no  doubt, 
require  an  admeasurement  upon  the  line  of  the  road.  It  was 
held,  in  a  late  case  in  Vermont,  that  in  such  cases  the  con- 
tractor is  not  entitled  to  compute  the  length  of  track,  and  thus 

*5  Atkinson  v.  Mar.  &  Cin.  Raihv.  Co.,  15  Ohio  St.  21. 

27  Weld  v.  London  &  S.  W.  Raihv.,  9  Jur.  N.  S.  510. 

M  Atty.-General  v.  Tewksbury  &  Great  Malvern  Raihv.  Co.,  9  Jur.  N.  S.  951. 

1  Leigh  v.  Hind,  9  B.  &  C.  774  ;  s.  c.  17  Eng.  Comm.  L.  R.  495.     But  Parke, 
J.,  was  of  a  different  opinion,  and  said  :  "  I  should  have  thought  that  the  proper 
mode  of  measuring  the  distance  would  be  to  take  a  straight  line  from  house  to 
house,  in  common  parlance,  as  the  crow  flies." 
*194 


§  106.  DISTANCE,   HOW   MEASURED.  395 

include  turnouts  and  side-tracks.2  But  tins  might  not  exclude 
branch  lines  extending  any  considerable  distance  from  the  main 
track. 

3.  But,  in  general,  the  English  courts  have  chosen  to  adhere 
to  the  rule  laid  down  by  Parke,  J.,  in  Leigh  v.  Hind,  that  dis- 
tance is  to  be  measured  in  a  direct  line,  through  a  horizontal 
plane.  Thus,  in  settlement  cases,  where  the  pauper  laws  pro- 
vide that  no  person  shall  retain  a  settlement  gained  by  possess- 
ing an  estate  or  interest  in  a  parish  for  a  longer  time  than  he 
shall  inhabit  "  within  ten  miles  thereof,"  it  was  held,  that  the  dis- 
tance was  to  be  measured  in  a  direct  line  from  the  residence  to 
the  nearest  point  of  the  parish.3  And  the  twenty  miles  within 
which  the  parties  are  required  to  reside,  in  certain  cases  affecting 
the  jurisdiction  of  the  county  courts,  by  the  recent  statute,  9  & 
10  Vict.  c.  95,  §  128,  is  to  be  computed  in  a  direct  line,  without 
reference  to  the  course  of  travel.4 

4.  And  where  a  turnpike  act  provided,  that  no  toll-gate  should 
be  erected  nor  any  toll  taken,  within  three  miles  of  B.,  and  the 
road  did  not  extend  to  B.,  but  connected  with  another  turnpike 
which  did,  and  also  a  public  road,  made  since  the  act  was 
passed,  it  was  held,  that  the  three  miles  should  be  measured  "  in 
a  straight  line  on  a  horizontal  plane,  and  not  along  any  of  the 
roads."  5 

5.  And  where  the  rate  of  fare  is  fixed  by  the  mile,  and  no 
provision  made  for  fractions  of  a  mile,  the  company  can  only 

*  Barker  v.  Troy  &  Rutland  Railw.,  27  Vt.  R.  766. 
3  Regina  v.  Saffron-Walden  Railw.,  9  Q.  B.  76. 

*  Stokes  -v.  Grissell,  25  Eng.  L.  &  Eq.  336 ;  Lake  v.  Butler,  30  Eng.  L.  & 
Eq.  264. 

6  Jewell  v.  Stead,  36  Eng.  L.  &.  Eq.  114.  Lord  Campbell,  Ch.  J.,  said: 
"  I  am  of  opinion  that  the  distance  is  to  be  measured  by  a  straight  line  upon  a 
horizontal  plane."  Lake  v,  Butler,  supra,  lays  this  down  as  a  general  rule. 
Lord  Campbell,  Ch.  J. :  "I  think  we  ought  to  adopt  that  mode  which  is  most 
convenient  and  most  certain.  If  the  distance  is  to  be  measured  by  the  nearest 
mode  of  communication,  uncertainty  will  be  introduced,  whether  it  may  be  by 
foot  way,  or  bridle  way,  or  carriage  way ;  and  in  some  cases  the  distance  must 
be  travelled  by  all  the  three  modes  ;  and  in  others  by  a  tidal  river,  in  which  case 
the  distance  would  vary,  at  different  times  of  the  day ;  also  the  distance  by  car- 
riage road  might  be  shortened,  or  lengthened,  by  a  new  road  being  made.  But 
if  the  other  mode  of  calculation  is  adopted,  no  uncertainty  will  arise." 


396 


CONSTRUCTION   OF   RAILWAYS. 


§107. 


charge  the  prescribed  tariff  for  the  full  mile  traversed.6     But 
the  English  statute7  provides  specially  for  fractions  of  a  mile. 


♦SECTION   III. 


Mode  of  Construction,  to  be  done  with  least  Damage. 


3.    Works  interfered  with,  to  be  restored,  for 
all  uses. 


1 .  Does  not  extend  to  form  of  the  road,  but 

the  mode  of  construction. 

2.  Special  provisions  of  act  not  controlled  by 

this  general  one. 


§  107.  1.  It  has  been  held,  that  the  general  provisions  of  the 
Railways  Clauses  Consolidation  Act,  that  in  the  exercise  of  their 
powers,  the  company  shall  do  as  little  damage  as  possible,  and 
shall  make  satisfaction,  to  all  parties  interested,  for  all  damages 
sustained  by  them,  does  not  extend  to  the  form  of  constructing 
the  railway.  It  does  not  apply  to  what  is  done,  but  to  the  man- 
ner of  doing. 

2.  Hence,  if  by  other  sections  of  the  statute  or  special  act  the 
company  are  required  to  build  bridges  in  a  particular  form,  they 
may  still  do  so,  notwithstanding  it  may  cause  more  damage  to 
the  owners  of  land  than  to  build  them  in  some  other  form.1 

3.  And  where,  in  a  parliamentary  contract  between  the  pro- 
moters of  a  railway  and  the  proprietors  of  a  ropery,  it  was  stip- 
ulated that  the  railway  should  be  so  constructed,  that  when 
finished  the  level  of  the  ropery  should  not  be  altered,  nor  the 
surface  of  the  ropery  in  the  least  diminished,  it  was  held  the 
company  were  bound  to  restore  the  surface,  so  as  to  be  available 
for  all  purposes  to  which  it  might  have  been  applied  before  the 
construction  of  the  railway,  and  not  for  the  purposes  of  the 
ropery  only.2 

•  Rice  v.  Dublin  &  Wicklow  Railw.,  8  Ir.  Com.  Law,  160. 
7  21  &  22  Vic.  C.  75  S.  1. 

1  Regina  v.  The  East  &  W.  I.  Docks  and  B.  J.  R.,  22  Eng.  L.  &  Eq.  113. 
1  Harby  v.  The  East  &  W.  I.  Docks  and  B.  J.  R.,  1  De  G.  M.  &  G.  290. 
*  195 


§  108.  MODE   OF   CROSSING   HIGHWAYS.  397 

*  SECTION    IV. 
Mode  of  crossing'  Highways. 

1.  English  statutes  require  it  should  not  be  at    10.   Grant  to  build  railways  across  main  line 

grade.  implies  rigid  to  use  them   as  common 

2.  Or  if  so,  that  gates  should  be  erected  and  j  carriers. 

tended.  11.  Railway  responsible  for  injury  by  Jailing 

3.  And  if  near  a  station,  railway  train  not  I  into  culvert  when  covered  by  snow. 

12.  The  right  to  lay  line  across  railway  car- 
ries light  to  lay  as  many  tracks  as  art 
convenient  for  the  business. 

13.  Damages  for  laying  highway  across  rail- 
way. 

14.  Laying  highway  across  railway  at  grade. 
Company  not  estopped  iy  contract  with 

former  owner  of  land. 


to  exceed  four  miles  an  hour. 
4.   Cannot  alter  course  of  highway. 

6.  Mandamus  does   not  lie   where  company 

have  an  election. 

7.  Railway  cannot   alter   highway  to  avoid 

building  bridge. 

8.  Extent  of  repair  of  bridge  over  railway. 

9.  Permission  to  connect  branches  with  main 

line  not  revocable. 


§  108.  1.  By  the  general  English  statutes  upon  the  subject  of 
railways,  it  is  provided,  "  that  if  the  line  of  the  railway  pass  any 
turnpike-road,  or  public  highway,  then,  (except  when  otherwise 
provided  by  the  special  act,)  either  such  road  shall  be  carried 
over  the  railway,  or  the  railway  shall  be  carried  over  such  road, 
by  means  of  a  bridge."  1 

2.  And  by  §  47  it  is  provided*,  that  whenever  the  railway  does 
pass  any  such  road,  upon  a  level,  the  company  shall  maintain 
gates,  at  every  such  crossing,  either  across  the  highway,  or  the 
railway,  in  the  discretion  of  the  railway  commissioners,  and  em- 
ploy suitable  persons  to  tend  the  same,  who  are  required  to  keep 
them  constanty  shut,  except  when  some  one  is  actually  passing 
the  highway,  or  railway,  as  the  case  may  be.2 

3.  And  where  a  railway  passes  a  highway  near  a  station,  on 

1  Railway  Clauses  Consolidation  Act,  §  46.  Mandamus  requiring  the  com- 
pany to  carry  their  road  over  a  highway,  by  means  of  a  bridge,  when  that  was 
the  only  mode  in  which  it  could  be  done,  according  to  the  level  of  the  line  of 
the  railway  at  the  time,  was  held  bad.  Southeastern  Railw.  v.  The  Queen,  20 
L.  J.  428. 

5  A  road  on  which  toll-gates  are  erected  and  tolls  taken  is  a  turnpike  road. 
The  Northam,  B.  &  Roads  Co.  v.  London  &  Southampton  Railw.,  6  M.  &  W.  428  ; 
1  Railw.  C.  653  ;  Regina  v.  E.  &  W.  I.  Docks  Railw.  Co.,  22  Eng.  L.  &  Eq.  113. 

*196 


398  CONSTRUCTION   OF  RAILWAYS.  §  108. 

a  level,  the  trains  are  required  to  slacken  their  speed,  so  as  not 
to  pass  the  same  at  any  greater  speed  than  four  miles  an  hour.3 

4.  The  right  to  raise  or  lower  highways,  in  the  construction  of 
a  railway,  does  not  authorize  the  company  to  change  the  course 
of  the  highway,  even  with  the  consent  of  the  town  council,  and 
for  *  so  doing  the  company  were  held  liable  to  persons  who  had 
sustained  special  damage  thereby.4 

5.  The  right  to  use  "  highways  "  in  the  construction  of  plank 
roads,  contained  in  a  general  law,  does  not  extend  to  military 
roads  constructed  by  the  United  States,  while  the  state  was  a 
territory,5  but  the  legislature  may  grant  such  right,  by  the  charter 
of  the  company. 

6.  And  where  a  mandamus 6  recited  that  the  railway,  which 
defendants  were  empowered  to  make,  crossed  a  certain  public 
highway,  not  on  a  level,  by  means  of  a  trench,  twenty  feet  deep, 
and  sixty-five  feet  wide,  through  and  along  which  the  railway 
had  been  carried,  and  the  highway  thereby  cut  through  and 
rendered  wholly  impassable  for  passengers  and  carriages  ;  and 
that  a  reasonable  time  had  elapsed  for  defendants  to  cause  the 
highway  to  be  carried  over  the  railway,  by  means  of  a  bridge,  in 
the  manner  pointed  out  in  the  statute,"  and  commanded  de- 
fendants to  carry  the  highway  over  the  railway,  by  means  of  a 
bridge,  in  conformity  with  the  statute,  particularly  specifying  the 
mode,  it  was  held,  that  it  not  being  otherwise  specially  provided 
in  the  company's  charter,  they  had,  by  the  general  act,  an  option 
to  carry  the  highway  over  the  railway,  or  the  railway  over  the 
highway,  by  a  bridge  ;  and  that  the  option  was  not  determined 
by  the  facts  alleged  in  the  writ,  and  the  judgment  of  the  Ex- 

3  §  48.  Some  similar  provisions,  in  regard  to  the  construction  of  railways  in 
this  country,  seem  almost  indispensable  to  the  public  security.  But  the  rage 
for  cheap  railways  is  so  great,  that  nothing  of  the  kind  could  be  effected,  we 
fear,  at  present. 

4  Hughes  v.  Providence  &  Wor.  Railw.,  2  R.  I.  R.  493.  It  is  the  duty  of  a 
railway  company  not  to  obstruct  public  roads,  where  they  intersect  the  railway- 
track,  either  by  stopping  a  train  or  otherwise  ;  and  the  company  must  take  the 
consequences  of  all  such  obstructions.  Murray  v.  Railw.  Company,  10  Rich. 
(S.  C.)  227. 

6  Attorney-General  v.  Detroit  &  Erie  Plank-Road  Co.,  2  Mich.  R.  138. 
•  Regina  v.  The  Southeastern  Railw.,  6  Eng.  L.  &  Eq.  214. 
'  8  and  9  Vict.  c.  20. 
*  107 


§  108.  MODE   OF   CROSSING   HIGHWAYS.  399 

chequer,  awarding  the  writ,  was  accordingly  reversed  in   the 
Queen's  Bench. 

7.  Where  the  charter  of  a  railway  authorized  them,  by  con- 
sent of  the  commissioners,  to  alter  a  highway  whenever  it  became 
necessary  in  order  to  build  the  railway  in  the  best  place,  and 
required  the  company  to  maintain  all  bridges  made  necessary  to 
carry  the  highway  over  the  railway :  It  was  held  that  the  com- 
pany had  no  power  to  alter  the  course  of  the  highway  in  order 
to  avoid  the  expense  of  building  a  bridge  ;  and  that  the  old  high- 
way was  still  subsisting,  notwithstanding  the  attempt  thus  to  lay 
out  a  substitute.8 

8.  And  where  a  railway  company,  under  their  statutory  powers, 
in  England,  carry  a  highway  over  their  road  by  means  of  a  bridge, 
the  company  is  bound  to  keep  both  the  bridge  and  the  road  and 
all  the  approaches  thereto  in  repair,  and  such  repair  includes  not 
only  the  structure  of  the  bridge,  but  the  superstructure,  and  every- 
thing requisite  to  put  the  highway  in  fit  condition  for  safe  use.9 

9.  Where  the  proprietors  of  land,  through  which  a  railway 
company  were  empowered  to  take  the  right  of  way,  had  the  right 
to  lay  branch  railways  upon  the  lands  adjoining,  and  to  connect 
them  at  proper  points  with  the  main  line,  so  as  not  to  endanger 
the  safety  of  persons  travelling  as  passengers  upon  the  railway, 
and  in  case  of  difference  in  regard  to  any  of  these  points,  the 
same  to  be  determined  by  two  justices  of  the  peace  ;  but  the 
company  were  not  required  to  admit  any  such  branch  to  connect 
with  their  line,  at  any  place  where  they  should  have  erected  any 
station  or  other  building  ;  it  was  held  that  the  consent  of  the 
company  to  unite  with  the  line  at  a  station  was  not  in  the  nature 
of  a  license  and  could  not  be  revoked.10 

10.  And  where  the  owners  or  occupiers  of  adjoining  land  had 
the  right  to  build  railways,  and  to  cross  the  line  of  the  principal 
railway,  without  being  liable  to  toll  or  tonnage,  it  was  held  the 

8  Norwich  &  Worcester  Railw.  v.  Killingly,  25  Conn.  R.  402.  Nor  have  the 
company  any  right  under  such  a  power  to  materially  and  essentially  change  the 
route  of  a  highway,  that  being  a  power  resting  solely  in  the  discretion  of  the 
municipal  authorities.  Warren  Railw.  Co.  v.  State,  5  Dutcher,  393.  See  also 
Veasie  v.  Penobscot  Railw.  Co.,  49  Me.  R.  119. 

9  North  Staffordshire  Railw.  Co.  v.  Dale,  8  Ellis  &  Bl.  835. 

10  Bell  v.  Midland  Railw.  Co.,  3  De  G.  &  Jones,  673. 


400  CONSTRUCTION   OF   RAILWAYS.  §  108. 

owners  of  such  railways  might  use  them  as  common  carriers  of 
freight  and  passengers.11 

11.  In  crossing  highways,  railway  companies  will  be  responsi- 
ble to  any  person  injured  by  leaving  a  culvert,  made  to  prevent 
water  accumulating,  in  such  a  condition  that  when  covered  by 
snow  he  fell  into  it,  being  unable  to  see  in.12 

12.  A  railway  corporation  having  acquired  the  right  to  lay  its 
line  across  a  highway,  may  lay  and  maintain  as  many  tracks  as 
are  essential  to  the  convenient  transaction  of  its  business.13 

13.  A  railway  corporation  is  entitled  to  damages  for  land  taken 
by  laying  a  public  highway  across  its  line,  and  for  the  expense 
of  maintaining  signs  and  cattle  guards  at  the  crossing,  and  of 
flooring  the  same  and  keeping  it  in  repair  ;  but  not  for  any  in- 
creased liability  to  accidents,  for  increased  expense  of  ringing  the 
bell,  or  for  its  liability  to  be  ordered  by  the  county  commissioners 
to  build  a  bridge  for  the  highway  over  the  track.  And  in  assess- 
ing damages,  in  such  a  case,  no  supposed  benefits  from  an  in- 
crease of  travel  on  the  railway  can  be  set  off  against  the  com- 
pany.14 

14.  Under  the  revised  statutes  of  Massachusetts,  town  or  city 
authorities  have  no  power  to  lay  a  highway  across  a  railway,  at 
grade,  and  the  company  is  not  estopped  from  objecting  thereto  by 
any  agreement  with  the  former  owners  of  the  land  in  regard  to 
the  right  of  way  to  be  used  by  them  at  the  point  where  the  high- 
way is  laid.15  Nor  can  such  authorities,  under  the  general  statutes 
of  that  state,  lay  out  a  way  across  any  portion  of  the  land,  not 
exceeding  five  rods  in  width,  which  has  been  taken  by  a  railway 
company  for  their  line,  unless  permission  has  been  granted  by 
the  county  commissioners.16 

11  Hughes  i>.  Chester  &  Holyhead  Railw.  Co.,  8  Jur.  N.  S.  221. 

,a  Judson  v.  N.  Y.  &  N.  Haven  Railw.  Co.,  29  Conn.  R.  434. 

15  Commonwealth  v.  Hartford  &  New  Haven  Railw.,  14  Gray,  379. 

14  Old  Colony  &  F.  R.  Railw.  v.  County  of  Plymouth,  14  Gray,  155. 

15  Boston  &  Maine  Railw.  v.  City  of  Lawrence,  2  Allen,  107. 
18  Commonwealth  v.  Haverhill,  7  Allen,  523. 


§  109.  RIGHTS   OF   TELEGRAPH   COMPANIES.  401 

SECTION    V. 

Rights  of  Telegraph  Companies. 

1.  Right  to  " pass  directly  across  a  railway,"  j  3.  Erecting  posts   in    highway   a   nuisance, 

does  not  justify  boring  under  it.  even  if  sufficient  space  remain. 

2.  Exposition  of  the   terms   "under"   and  j  n.  4.   Opinion  of  Crompton,  J. 

"  across."  j 

§  109.  1.  Where  a  telegraph  company  had  by  their  act  the 
power  to  pass  under  highways,  but  to  pass  "  directly  but  not 
otherwise  across  any  railway  or  canal,"  and  a  railway  was  laid 
upon  the  level  of  a  highway,  in  accordance  with  their  special 
act,  it  was  *  held  that  the  telegraph  company  could  carry  their 
works  under  the  highway  at  the  point  where  it  was  intersected 
by  the  railway.1  But  the  telegraph  company,  attempting  to  pass 
under  the  railway  in  such  a  manner  as  to  disturb  their  works, 
was  held  liable  in  trespass.2 

2.  Parke,  B.,  in  giving  judgment,  said:  "Across  seems  there- 
fore different  from  under,  and  the  power  to  carry  '  across  '  does 
not  enable  them  to  go  under.  It  may  be  that  this  prohibition 
would  not  apply,  if  the  railway  were  carried  over  a  highway,  at 
a  great  height,  for  then  the  highway  and  railway  might  be  con- 
sidered independent  of  each  other." 

3.  In  a  recent  English  case 3  it  was  decided,  that  a  telegraph 
company,  which  erected  posts  in  any  portion  of  the  highway,  al- 
though not  in  the  travelled  portion  of  it,  whereby  the  way  is 
rendered  in  any  respect  less  commodious  to  the  public  than  be- 
fore, is  guilty  of  committing  a  nuisance  at  common  law  ;  and  the 
fact  that  the  jury  find  that  a  sufficient  space  for  the  public  use 
remained  unobstructed,  will  not  afford  any  justification,  unless 
the  act  is  done  by  legislative  permission.4 

1  Southeastern  Railw.  v.  European  &  Am.  Tel.  Co.,  24  Eng.  L.  &  Eq.  513. 

8  Post,  §§  164,  130,  143. 

*  Reg.  v.  United  Kingdom  Electric  Telegraph  Company,  9  Cox,  C.  C.  1 74  ; 
3  F.  &F.  73,  8  Jur.  N.  S.  1153. 

4  The  case  is  of  so  much  importance  that  we  have  ventured  to  insert  the 
leading  opinion  on  the  final  hearing  in  full  bench. 

Crompton,  J.    "  The  defendants  were  indicted  for  erecting  their  posts  on  a  hi^h 

VOL.  I.  26  *  198 


402  CONSTRUCTION   OF   RAILWAYS.  §  109. 

road,  so  as  to  obstruct  the  public  in  the  use  thereof,  and  we  determined  before  giv- 
ing judgment  to  hear  the  case  of  Regina  v.  Train,  thinking  it  possible  that  the  same 
question  might  there  arise,  or  that  something,  at  all  events,  throwing  light  upon 
it  might  be  elicited  during  its  progress.  Having  heard  that  case,  there  is  nothing 
to  prevent  our  giving  judgment  without  further  delay.  My  brother  Martin  laid 
down  two  propositions,  and  the  question  is,  whether  either  of  them  constitutes 
a  misdirection.  The  first  of  these  propositions  was  as  follows  :  '  In  the  case  of 
an  ordinary  highway,  although  it  may  be  of  a  varying  and  unequal  width,  run- 
ning between  fences,  one  on  each  side,  the  right  of  passage  or  way  prima  facie, 
and,  unless  there  be  evidence  to  the  contrary,  extends  to  the  whole  space  be- 
tween the  fences  ;  and  the  public  are  entitled  to  the  use  of  the  entire  of  it  as  the 
highway,  and  are  not  confined  to  the  part  which  may  be  metalled  or  kept  in 
order  for  the  more  convenient  use  of  carriages  and  foot  passengers.'  Now,  this 
seems  to  us  a  very  proper  direction.  It  is  urged  by  Mr.  O'Malley  that  this  rul- 
ing is  not  applicable  to  a  place  where  there  is  a  considerable  portion  of  green- 
sward on  either  side  of  the  metalled  road,  which  either  the  owner  of  the  ad- 
joining freehold  or  the  lord  of  the  manor  would  be  entitled,  if  he  thought 
proper,  to  enclose.  This  is  the  first  of  two  objections  taken  on  behalf  of  the 
defendants.  But  it  seems  to  me  that  my  brother  Martin  carefully  guards 
against  that.  He  says,  that  prima  facie  the  space  between  the  fences  is  to  be 
taken  as  the  highway ;  and  this  seems  to  be  in  accordance  with  the  judgment  of 
Lord  Tenterden,  C.  J.,  in  Rex  v.  Wright,  3  B.  &  Ad.  681,  where  he  says:  'I 
am  strongly  of  opinion,  when  I  see  a  space  of  fifty  or  sixty  feet  through  which 
a  road  passes,  between  enclosures  set  out  under  an  act  of  Parliament,  that, 
unless  the  contrary  be  shown,  the  public  are  entitled  to  the  whole  of  that  space, 
though,  perhaps,  from  economy,  the  whole  may  never  have  been  kept  in  repair.' 
The  same  principle  is  involved  in  the  decision  in  Williams  v.  Wilcox,  and  my 
brother  Martin  seems  to  have  laid  down  the  law  in  unison  with  these  cases.  He 
says,  *  that  prima  facie,  and  in  absence  of  evidence  to  the  contrary,  the  public 
are  entitled  to  the  right  of  passage  over  the  whole,  and  are  not  confined  to  that 
part  which  is  metalled  for  the  better  convenience  of  travellers  and  traffic' 
Mr.  O'Malley  was  unable,  when  invited,  to  say  to  what  definite  portion  of  the 
road'  metalled,  or  otherwise,  he  held  the  public  to  be  entitled.  He,  however, 
contended  that  the  posts  might  have  been  erected  on  what  was  in  fact  no  part 
of  the  highway,  such  as  a  rock,  or  something  of  that  kind,  which  might  occupy 
part  of  the  space  between  the  fences,  but  over  or  across  which  no  road  could 
possibly  exist.  But  this  would  not  be  a  part  of  the  highway  any  more  than  a 
house  similarly  placed,  built  before  the  dedication  of  the  road.  We  think, 
therefore,  on  the  first  point,  the  direction  of  the  learned  judge  was  correct,  and 
that  the  right  of  the  public  extends  over  the  entire  highway. 

••  The  second  proposition  laid  down  by  the  learned  judge  is  a  wider  one,  and  it 
remains  to  be  seen  whether  it  amounts  to  a  misdirection.  It  is,  '  that  a  perma- 
nent obstruction  erected  on  a  highway,  placed  there  without  lawful  authority, 
which  renders  the  way  less  commodious  than  before  to  the  public,  is  an  unlawful 
act,  and  a  public  nuisance  at  common  law ;  and  that  if  the  jury  believed  that 
the  defendants  placed,  for  the  purposes  of  profit  to  themselves,  posts,  with  the 


§  109.  RIGHT   OF   TELEGRAPH   COMPANIES.  403 

object  and  intention  of  keeping  them  permanently  there,  in  order  to  make  a 
telegraphic  communication  between  distant  places,  and  did  permanently  keep 
them  there,  and  the  posts  were  of  such  size  and  dimensions  and  solidity  as  to 
obstruct  and  prevent  the  passage  of  carriages,  and  horses,  or  foot  passengers 
upon  the  parts  of  the  highway  where  they  stood,  the  jury  ought  to  find  the  de- 
fendants guilty  upon  this  indictment ;  and  that  the  circumstance  that  the  posts 
were  not  placed  upon  the  hard  or  metalled  part  of  the  highway,  or  upon  a  foot- 
path artificially  formed  upon  it,  or  that  the  jury  might  think  that  sufficient  space 
for  the  public  traffic  remained,  are  immaterial  circumstances  as  regards  the 
legal  right,  and  do  not  affect  the  right  of  the  crown  to  the  verdict.'  This  ap- 
pears to  us  also  to  be  substantially  a  proper  direction,  inasmuch  as  the  real 
question  is,  whether  there  was  a  practical,  as  distinguished  by  myself  in  Regina 
v.  Russell,  from  a  mathematical  nuisance.  My  brother  Martin  appears  dis- 
tinctly to  have  raised  that  point,  by  saying  that  the  posts  must  be  of  such  size, 
dimensions,  and  solidity  as  to  obstruct  and  prevent  the  passage  of  carriages 
and  horses  and  foot  passengers  at  all.  In  Regina  v.  Russell,  the  jury  found 
there  was  no  practical  obstruction ;  but  where  there  is  a  practical  obstruction 
on  a  highway,  by  which  the  public  are  prevented  from  using  it,  that  is  a  nui- 
sance according  to  all  definitions  of  the  word,  and  it  makes  no  difference  whether 
or  not  enough  be  still  left  unobstructed  for  the  use  of  the  public  ;  or  whether 
the  obstruction  is  placed  on  that  part  of  the  road  which  is  neither  metalled  nor 
repaired  for  the  purpose  of  traffic.  In  Rex  v.  Wright,  Lord  Tenterden  laid  it 
down  that  the  public  are  entitled  to  the  entire  space  on  either  side  of  the  high- 
way, as  he  says,  for  the  benefit  of  air  and  sun.  We  must  take  it  now  that  the 
jury  found  the  defendants  guilty  upon  these  facts,  and  that  the  posts  were  of 
such  size  and  solidity  as  to  create  an  obstruction,  and  amount  to  a  nuisance. 
It  was  further  objected  by  Mr.  O'Malley  that  certain  of  the  posts  appeared 
actually  to  have  stood  upon  parts  of  the  road  which  were  inaccessible  to  travel- 
lers ;  but  supposing  this  to  be  the  case,  it  would  be  no  use  to  the  company  to 
have  these  few  isolated  posts  left  standing  at  different  spots  along  the  line  of 
road ;  and  if  they  wished  to  keep  them,  they  should  have  contended  at  the  trial 
that  some  of  these  posts  did  not  come  within  the  rule  laid  down  by  the  learned 
judge.  We  thifik,  therefore,  that  with  respect  to  these  few  posts,  which  may 
possibly  have  excepted  from  the  rule,  it  would  be  useless  to  grant  a  rule," 


404 


CONSTRUCTION    OF   RAILWAYS. 


§110. 


SECTION    VI. 


Duty  in  regard  to  substituted  Works. 


1 .  Bound  to  repair  bridge  substituted  for  ford, 

or  to  can//  highway  over  railway. 

2.  The  same  rale  has  been  applied  to  drains, 

substituted  for  others. 


3.   Hie   extent   of  this  duty   as   applied  to 
bridge  and  approaches. 


§  110.  1.  Where  a  public  company,  as  a  navigation  company, 
under  the  powers  conferred  by  the  legislature,  destroyed  a  ford 
and  substituted  a  bridge,  it  was  held,  that  they  were  liable  to 
keep  the  bridge  in  repair.1  So,  too,  where  such  company  cut 
through  a  highway,  rendering  a  bridge  necessary  to  carry  the 
highway  over  the  cut,  the  company  are  bound  to  keep  such 
bridge  in  repair.2 

2.  So,  where  a  navigation  company  had  power  to  use  a  public 
drain,  by  substituting  another,  or  others,  it  was  held  that  the 
company  were  bound  to  keep  in  repair  the  substituted  drains,  as 
well  as  make  them.3 

3.  Under  the  English  statute,4  where  the  company  carried  the 
highway,  by  means  of  a  bridge,  over  the  railway,  it  is  bound  to 
maintain  the  bridge  ;  and  all  the  approaches  thereto  in  repair, 
and  such  repair  includes  not  only  the  structure  of  the  bridge, 
and  the  approaches,  but  the  metalling  of  the  road  on  both.5  But 
this  will  not  include  the  road  beyond  where  it  may  properly  be 
regarded  as  forming  an  approach  to  the  bridge.6 

1  Rex  v.  Inhabitants  of  Kent,  13  East,  220;  Rex  v.  Inhabitants  of  Lindsey, 
14  East,  317. 

2  Rex  v.  Kerrison,  3  M.  &  Sel.  526.  This  duty  may  be  enforced  by  indict- 
ment. Regina  v.  Ely,  19  L.  J.  (M.  C.)  223.  And  the  same  obligation  rests 
upon  the  assignees  of  the  company.  Penn.  Railw.  Co.  v.  Duquesne  Borough, 
46  Penn.  St.  223. 

8  Priestly  v.  Foulds,  2  Railw.  C  422;  2  Man.  &  Gr.  175. 

4  8  and  9  Vict,  c.  20. 

6  Newcastle,  &c.  Turnpike  Co.  v.  North  Staf.  Railw.  5  H.  &  N.  160. 

6  W.  &  L.  Railw.  v.  Kearney,  12  Ir.  Com.  L.  224  ;  Fosberry  v.  Waterford  & 
Limerick  Railw.,  13  Ir.  Com.  Law,  494;  London  &  North  Western  Railw.  Co. 
v.  Skerton,  5  B.  &  S.  559. 


§  111.  NATURE   OF   WORKS.  —  MODE   OF   CONSTRUCTION.  405 


♦SECTION    VII. 

Construction   of  Charter  in  regard  to  Nature   of  Works,  and 
Mode  of  Construction. 

§  111.  There  are  some  cases  in  regard  to  the  construction  of 
railway  works,  and  their  requisite  dimensions,  which  have  come 
under  the  consideration  of  the  courts,  and  where  the  decisions 
are  of  little  precedent,  for  other  cases,  not  altogether  analogous, 
and  on  that  account  scarcely  deserving  an  extended  analysis,  but 
which  nevertheless  we  scarcely  feel  justified  in  wholly  omitting 
here.1 

1  Attorney-General  v.  London  &  Southampton  Railw.,  1  Railw.  C.  302.  This 
case  is  in  regard  to  the  width  of  a  road  under  a  railway  bridge.  Manchester  & 
Leeds  Railw.  v.  Reg.  (in  error),  3  Railw.  C.  633.  The  footpaths  are  not  to  be 
regarded  as  any  part  of  the  requisite  width  of  the  bridge.  Reg.  v.  Rigby,  6 
Railw.  C.  479;  Reg.  v.  London  &  Birmingham  Railw.,  1  Railw.  C.  317.  This 
is  a  case  in  regard  to  the  width  of  a  bridge  over  a  highway.  Reg.  v.  Birming- 
ham &  Gloucester  Railw.,  2  Railw.  C.  694,  which  is  a  case  in  regard  to  the  width 
of  the  approaches  to  a  bridge  across  a  railway.    Reg.  v.  Eastern  Counties  Railw., 

3  Railw.  C.  22,  as  to  the  right  to  lower  a  street,  in  order  to  obtain  the  requisite 
height  under  a  bridge,  notwithstanding  the  provisions  of  the  local  paving  act. 
Reg.  v.  Sharpe,  3  Railw.  C.  33,  as  to  the  right  to  erect  a  bridge  at  a  different 
angle  from  the  former  road.  Where  a  special  act  required  a  company  to 
strengthen  a  bridge  described  in  the  act,  held  that  they  might,  nevertheless, 
pull  down  the  old  bridge  and  build  a  new  one.  Wood  v.  North  Staffordshire 
Railw.,  1  McNagh.  &  G.  278;  Rex  v.  Morris,  1  B.  &  Ad.  441,  as  to  making  a 
railway  on  a  turnpike  road.  A  turnpike  road,  having  power  to  take  tolls  upon 
any  way  leading  out  of  their  road,  may  demand  tolls  of  passengers  crossing 
their  road  upon  a  railway  granted  subsequently.  Rowe  v.  Shilson,  4  B.  &  Ad. 
726. 

Where  a  railway  company,  in  the  course  of  construction,  turned  a  stream  of 
water,  which  by  their  charter  they  might  do,  restoring  it  to  its  former  state,  as 
near  as  practicable,  and  the  new  channel  was  properly  guarded,  as  far  as  could 
be  perceived,  at  the  time  of  turning  it,  it  was  held,  that  the  company  were  not 
obliged  thereafter  to  watch  the  operation  of  the  water  and  take  precautions  to 
prevent  its  encroaching  upon  the  adjoining  lands.  Norris  v.  Vt.  C.  Railw.,  28 
Vt.  R.  99.     See  also  Fitchburg  Railw.  v.  Grand  Junction  Railw.  &  Depot  Co., 

4  Allen,  198,  where  a  question  in  regard  to  apportioning  the  expense  of  a  work 
done  by  the  plaintiff,  for  the  mutual  benefit  of  the  parties,  in  conformity  with 
statutory  provisions,  is  considered,  and  numerous  exceptions  on  the  part  of  the 

*  199 


406 


CONSTRUCTION   OF  RAILWAYS. 


§112. 


SECTION    VIII. 


Terms  of  Contract.  —  Money  Penalties.  —  Excuse  for  Non- 
Performance. 


1 .  Contracts  for  construction  assume  unusual 

forms. 

2.  Estimates  made  by  engineer. 

3.  Money  penalties,  liquidated  damages.    Full 

performance. 

4.  Excuses  for  non-performance. 

5.  Penalty  not  incurred,  unless  upon  strictest 

construction. 


6,  7.   Contractor  not  entitled  to  anything  for 

part-performance. 
n.  2.  Proper  construction  of  the  terms  used  in 

these  contracts. 
8.   Contract  for  additional  compensation  must 

be  strictly  performed. 


§  112.  1.  As  the  time  within  which  such  works  are  to  be 
accomplished  is  often  limited  in  the  act,  and  as  the  manner  in 
which  the  *  work  is  done,  is  of  the  greatest  possible  importance 
to  the  public  safety,  the  law  sanctions  contracts  for  such  under- 
takings, in  forms  not  only  unusual,  but  which  might  not  be 
strictly  binding  perhaps  in  the  case  of  ordinary  contracts.  For 
instance,  it  is  not  uncommon  for  the  contract  to  impose  penal- 
ties upon  the  contractor  for  slight  deviations  from  the  terms  of 
agreement,  and  to  secure  to  the  company  the  absolute  right  to 
put  an  end  to  the  contract,  whenever  they  or  their  engineer  are 
dissatisfied  with  the  mode  in  which  the  work  is  done,  or  the 
progress  made  in  it. 

2.  And  it  is  almost  universal,  in  these  contracts  in  this  coun- 
try, to  refer  the  quality  and  quantity  of  the  work  done,  and  the 
consequent  amount  of  payments,  to  be  made  from  time  to  time, 
to  the  absolute  determination  of  an  engineer  employed  by  the 
company.1 

3.  The  penalties  which  these  contracts  provide,  either  abso- 
lutely, or  in  the  discretion  of  the  company's  engineer,  for  delay 

defendant  are  overruled  by  the  court.  The  most  important  of  these  exceptions, 
and  which  the  court  regarded  as  no  sufficient  ground  of  defence,  are  :  that  the 
commissioner  appointed  under  the  statute,  in  supervising  the  work  and  appor- 
tioning the  cost,  conducted  with  partiality  towards  the  plaintiff,  and  under  their 
undue  influence ;  and  that  the  value  of  the  defendant's  property  and  franchise 
was  diminished  by  the  work,  and  those  of  the  plaintiff  increased  thereby. 
1  Ranger  v.  Great  Western  Railw.,  1  Railw.  C.  1 ;  s.  c.  3  Id.  298  ;  ante,  §  105. 
♦200 


§  112.     PENALTIES.  —  EXCUSE  FOR  NON-PERFORMANCE.       407 

in  the  work,  are  to  be  regarded,  commonly,  in  the  nature  of 
liquidated  damages.2     To  entitle  the  party  to  recover  for  work 

8  Ranger  v.  Great  Western  Railw.,  27  Eng.  L.  &  Eq.  61.  In  regard  to  the 
penalties  given  by  the  contract,  it  is  said  here  by  the  Lord  Chancellor :  "  All 
the  circumstances  which  have  been  relied  on  in  the  different  reported  cases,  as 
distinguishing  liquidated  damages  from  penalty,  are  to  be  found  here.  The 
injury  to  be  guarded  against  was  one  incapable  of  exact  calculation.  The  sum 
to  be  paid  is  not  the  same  for  every  default,  for  that  which  should  occasion  small 
as  for  that  which  should  cause  great  inconvenience,  but  one  increasing  as  the 
inconvenience  would  become  more  and  more  pressing;  and,  finally,  the  pay- 
ments are  themselves  secured  by  the  penalty  of  a  bond ;  and  this  is  hardly  con- 
sistent with  the  notion  that  the  payments  secured  were  themselves  only  penal 
sums  to  secure  something  else.  For  these  reasons,  I  think  it  clear  that  these 
payments,  though  called  penalties,  are  in  truth  liquidated  damages,  agreed  on 
by  the  parties,  and  which  the  company  might  set  off  against  the  demand  of  the 
appellant  upon  them  under  the  contract.  But  then  the  appellant  contends  that 
the  company  never  had  a  title  to  recover  these  penalties,  because  the  delays  in 
respect  of  which  they  claimed  were  produced  by  the  harassing  and  vexatious 
conduct  of  the  respondents  themselves,  or  their  agents.  It  is  sufficient  on  this 
head  to  say,  that  the  appellant,  in  my  judgment,  wholly  fails  to  make  out,  in 
point  of  fact,  the  proposition  for  which  he  contends.  The  only  penalties  actually 
deducted  are  200/.  for  five  weeks'  delay  in  completing  the  headings  of  tunnels 
1  and  3  in  contract  1  B,  and  20/.  for  delay  in  the  works  of  the  Avon  bridge. 
There  is  no  doubt  but  that  these  sums  were  due,  unless  the  appellant  could  re- 
lieve himself  by  showing  that  the  delay  had  been  forced  on  him  by  the  companv 
itself.     The  evidence  altogether  fails  to  satisfy  me  of  this." 

Where,  in  a  contract  between  the  original  contractors  for  building  a  railway 
and  the  sub-contractors,  it  was  provided,  that  the  work  should  be  subject  to  the 
supervision  and  control  of  the  engineer  of  the  company,  and  that  he  should 
make  monthly  estimates,  four  fifths  of  which  "  value  "  should  be  paid  to  the  sub- 
contractors ;  and  when  the  work  was  completed,  a  final  estimate  ;  the  monthly 
and  final  estimates  as  to  the  quantity,  character,  and  value  of  the  work  done, 
should  be  conclusive  between  the  parties ;  and  that  if  the  contractor  should  not 
truly  comply  with  his  part  of  the  agreement,  or  in  case  it  should  appear  to  the 
engineer  that  the  work  did  not  progress  with  sufficient  speed,  the  other  party 
was  to  have  power  to  annul  the  contract ;  and  the  unpaid  portion  of  the  road 
was  to  be  forfeited  by  the  sub-contractor  and  become  the  property  of  the  other 
party ; 

Held,  that  the  award  of  the  engineer  declaring  the  work  forfeited,  was  con- 
clusive, and  binding  on  the  sub-contractor;  that  the  action  of  the  sub-contractor 
upon  the  contract  was  in  affirmance  of  the  contract,  and  that  he  could  not 
therefore  impeach  its  stipulations. 

That  the  term  "  value,"  as  used  in  the  contract,  was  to  be  distinguished  from 
the  term  "  price,"  fixed  for  the  different  classes  of  work,  and  that  the  engineer, 
in  making  monthly  estimates,  had  a  right  to  deduct  from  the  amount  of  work 


408  CONSTRUCTION    OF   RAILWAYS.  §  112. 

done  upon  *  construction  contracts,  he  must  show,  either  that  he 
has  performed  the  labor  according  to  the  contract,  or  that  the 
other  party  has  waived  strict  performance,  or  hindered  it.3 

4.  But  the  party  may  excuse  full  performance  by  showing 
that  he  was  prevented  by  an  injunction  out  of  Chancery  at  the 
suit  of  a  third  party.4  Or,  that  the  parties  had  entered  into  a 
new  contract  for  the  same  work,  upon  different  terms.5 

5.  Where  the  work  was  suspended  at  the  request  of  the  com- 
pany, with  the  view  to  a  new  location,  the  company  agreeing  to 
pay  the  plaintiff  $  750  by  way  of  damages,  if  the  work  should 
not  be  resumed  within  two  years,  and,  if  it  was,  the  plaintiff  to 
proceed  with  the  work  at  the  prices  stipulated,  upon  those  sec- 
tions not  altered ;  the  route  being  altered  as  to  some  of  the 
sections,  upon  *  which  the  defendants  resumed  within  the  two 
years,  employing  others  to  do  the  work,  without  giving  notice  to 
plaintiff;  held,  that  the  plaintiff  could  not  recover  the  damages 
agreed,  as  the  work  was  resumed  within  the  two  years,  but  that 
the  plaintiff  was  entitled  to  damages  for  not  being  employed  to 
do  the  work.6 

6.  Where,  by  the  terms  of  the  contract,  a  proportion  of  the 
sum  earned  is  to  be  paid  monthly,  and  the  remainder  reserved, 

done  sufficient  to  bring  it  to  the  average  of  all  the  work  to  be  done,  and  is  not 
bound  to  allow  the  sub-contractor  the  price  stipulated  in  the  contract,  for  work 
of  this  description. 

If  the  company  withheld  unjustly  funds  due  the  sub-contractor,  they  could  not 
fairly  take  advantage  of  the  forfeiture  declared  for  want  of  prosecution  of  the 
work.  But  the  retention  of  the  20  per  cent,  in  case  of  forfeiture,  is  intended  as 
the  measure  of  reparation  for  the  failure  to  perform  the  w.ork  according  to  the 
contract,  and  not  as  a  mere  penalty. 

The  payment  after  the  forfeiture,  by  one  of  the  original  contractors,  of  the 
hands  who  had  been  employed  on  the  works  by  the  sub-contractor,  and  furnish- 
ing money  to  carry  on  the  work,  is  not  a  waiver  of  the  forfeiture,  especially  if 
he  was  then  ignorant  that  the  work  had  been  forfeited.  Faunce  v.  Burke,  16 
Penn.  St.  469. 

3  Andrews  v.  The  City  of  Portland,  35  Me.  R.  475.  And  it  was  held  here, 
that  part  payment,  under  the  contract,  after  the  contractor  had  failed  in  strict 
performance,  was  no  waiver,  unless  the  failure  was  known  to  the  employer  at 
the  time  of  payment. 

4  Whitfield  v.  Zellnor,  24  Miss.  R.  663. 

5  Howard  v.  The  Wilmington  &  Susquehannah  Railw.,  1  Gill,  311. 
•  Fowler  v.  Kennebec  &  Portland  Railw.,  31  Me.  R.  197. 

*2GT,  202 
t 


§113. 


EXECUTION.  —  EXTRA   WORK. 


DEVIATIONS. 


409 


as  security  for  the  fulfilment  of  the  contract,  it  was  held,  that 
nothing  was  due  till  the  day  of  payment,  which  could  be  at- 
tached by  trustee  process.7 

7.  And  where,  in  such  case,  the  company  have  the  power  to 
determine  the  contract,  and  the  reserved  fund  is  thereby  to  be 
forfeited,  and  the  company  do  so,  after  the  contractor  has  worked 
one  month  and  part  of  another,  and  has  received  the  proportion 
of  payment  for  the  first  month,  it  was  held  nothing  was  due  to 
the  contractor.8 

8.  Where  a  railway  company,  after  making  a  contract  for  the 
construction  of  its  road,  became  embarrassed  and  was  unable 
to  make  payments  to  the  contractor,  and  the  president,  who  was 
a  stockholder,  and  extensively  interested  in  the  success  of  the  en- 
terprise, made  an  additional  agreement  with  the  contractor  that 
he  would  give  him  his  notes  to  the  amount  of  $  10,000,  if  the 
work  were  completed  by  a  day  named,  it  was  held,  that  he  was 
not  liable  upon  the  agreement  unless  the  contractor  performed 
his  part  of  the  agreement  by  the  day  named.  The  notes  were, 
by  the  terms  of  the  agreement,  to  go  in  part  payment  of  what 
was  due  from  the  company,  and  the  new  agreement  was  not  to 
affect  the  subsisting  contract  with  the  company.9 

SECTION    IX. 
Form  of  Execution.  —  Extra  Work.  —  Deviations. 


1.  No  particular  form  of  contract  requisite 

generally. 
2    But  the  express  requirements  of  the  charter 

must  be  complied  with. 
3.  Extra  work  cannot  be  recovered  of  the  com- 


pany, unless  done  upon  the  terms  speci- 
fied in  contract. 
4.  If  the  company  have  the  benefit  of  work 
are  liable. 


§  113.  1.  No  particular  form  of  contract  is  requisite  to  bind 
the  company,  unless  where  the  charter  expressly  requires  it.1 

7  Williams  v.  Androscoggin  &  Kennebec  Railw.,  36  Me.  R.  201. 

8  Hennessey  v.  Farrell,  4  Cush.  267. 

9  Slater  v.  Emerson,  19  How.  (U.  S.)  224. 

1  Post,  §§  164,  130,  143.  Corporations  cannot  enter  into  partnerships,  but  two 
or  more  corporations  may  become  jointly  bound  by  the  same  contract.  Marine 
Bank  of  Chicago  v.  Ogden,  29  111.  R.  248. 


410  CONSTRUCTION   OF   RAILWAYS.  §  113. 

And  although  there  seems  still  to  be  a  failing  effort  in  the  Eng- 
lish courts  to  maintain  the  necessity  of  the  contracts  of  corpora- 
tions being  under  seal,2  it  is  certain  that  the  important  business 
transactions  of  *  daily  occurrence,  in  both  that  country  and  here, 
where  no  such  formality  is  resorted  to  by  business  corporations, 
in  matters  of  contract,  and  where  to  look  for  any  such  solem- 
nity would  be  little  less  than  absurd,  almost  of  necessity  drive 
the  courts  of  England  to  disregard  the  old  rule  of  requiring  the 
contracts  of  corporations  to  be  made  under  the  corporate  seal.6 

2.  But  when  the  charter  of  the  corporation  requires  any  par- 
ticular form  of  authenticating  their  contracts,  it  cannot  be  dis- 
pensed with.  And  where,  by  the  charter  of  a  railway  company, 
the  directors  were  authorized  to  use  the  common  seal,  and  all 
contracts  in  writing,  relating  to  the  affairs  of  the  company,  and 
signed  by  any  three  of  the  directors,  were  to  be  binding  on  the 
company ;  and  the  company  entered  into  a  contract,  not  under 
seal,  by  their  secretary,  to  complete  certain  works,  and,  after 
part  performance,  the  contractor  was  dismissed  by  the  company, 
it  was  held  he  could  not  recover  the  value  of  the  work  done.3 

2  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815.  But  see  Beverly  v.  Lincoln 
Gas  Light  &  Coke  Co.,  6  Adol.  &  Ellis,  829  ;  Dunston  v.  The  Imperial  Gas.  Co., 
3  B.  &  Ad.  125.  Tindal,  Ch.  J.,  in  Gibson  v.  East  India  Co.,[5  Bing.  (N.  C.) 
262,  by  which  it  seems  that  the  English  courts  except  from  the  operation  of  the 
rule  only  such  transactions  of  business  corporations  as  could  not  reasonably  be  ex- 
pected to  be  done  under  seal.  But  see  Bank  of  Columbia  v.  Patterson,  7  Cranch, 
299,  and  2  Kent,  Comm.  289,  291,  and  notes,  where  it  is  said  the  old  rule  is  con- 
demned, and  English  and  American  cases  cited  and  commented  upon.  Post, 
§  143  ;  United  States  Bank  v.  Dandridge,  12  Wheat.  64  ;  Bank  of  the  Metropo- 
lis v.  Guttschlick,  14  Pet.  19  ;  Norwich  &  "Worcester  Railw.  v.  Cahill,  18  Conn. 
R.  484  ;  San  Antonio  v.  Lewis,  9  Texas  R.  69.  See,  also,  Weston  v.  Bennett, 
12  Barbour,  196  ;  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  74. 

3  £%gh3  v.  The  London  &  Blackwall  Railw.,  6  Railw.  C.  590.  It  is  said  here 
that  a  contract,  to  be  binding  on  a  corporation  when  not  under  seal,  must  be 
one  of  necessity,  or  of  too  frequent  occurrence,  or  too  trivial,  to  be  made  under 
seal.  In  a  recent  case  in  the  Court  of  Exchequer,  Williams  v.  Chester  &  Holy- 
head Railw.,  5  Eng.  L.  &  Eq.  497,  Martin,  B.,  thus  comments  upon  the  rule  of 
evidence  in  regard  to  implied  contracts  of  corporations.  "  Persons  dealing  with 
these  companies  should  always  bear  in  mind,  that  such  companies  are  a  corpora- 
tion, a  body  essentially  different  from  an  ordinary  partnership  or  firm,  for  all 
purposes  of  contracts,  and  especially  in  respect  of  evidence  against  them  on  legal 
trials  ;  and  should  insist  upon  these  contracts  being  by  deed  under  the  seal  of 
the  company,  or  signed  by  directors  in  the  manner  prescribed  by  the  act  of  par- 

*203 


§  113.  EXECUTION.  —  EXTRA   WORK.  —  DEVIATIONS.  411 

*  3.  But  where  the  contract  contains  express  provisions  that 
no  allowance  shall  be  made  against  the  company  for  extra  work, 
unless  directed  in  writing  under  the  hand  of  the  engineer  or 
some  other  person  designated,  or  unless  some  other  requisite 
formality  be  complied  with,  the  party  who  performs  extra  work, 
upon  the  assurance  of  any  agent  of  the  company  that  it  will  be 
allowed  by  the  company,  without  the  requisite  formality,  must 
look  to  the  agent  for  compensation,  and  cannot  recover  of  the 
company,  either  at  law  or  in  equity.4  So,  under  the  English 
General  Company  Acts,  where  the  directors  are  authorized  to 
contract  on  the  part  of  the  company,  although  not  in  writing, 
when  such  contracts  would,  if  entered  into  by  private  persons, 
be  binding  in  that  form,  three  directors  being  a  quorum  for  that 
purpose,  it  was  held,  that  the  mere  fact  that  extra  work  was  done 
with  the  approbation  of  the  company's  engineer,  the  special  con- 

liament.  There  is  no  safety  or  security  for  any  one  dealing  with  such  a  body, 
on  any  other  footing.  The  same  observation  also  applies  in  respect  of  any  vari- 
ation or  alteration  in  a  contract  which  has  been  made." 

But  see  post,  §  143,  and  cases  cited.  And  where  the  assistant  engineer  upon 
a  railway,  having  charge  of  the  construction  of  a  section  of  the  road,  becoming 
dissatisfied  with  the  contractor,  dismissed  him,  and  assumed  the  work  himself, 
agreeing  with  the  workmen  to  see  them  paid,  it  was  held  his  subsequent  decla- 
rations could  not  be  admitted,  to  charge  the  company  for  supplies  furnished  the 
contractors,  on  the  ground  that  they  were  not  made  in  the  course  of  the  per- 
formance of  his  duty  as  agent  of  the  company.  Stiles  v.  The  JVestern  Railw.,  8 
Met.  44  ;  s.  c.  1  Am.  Railw.  C.  397.  See  also  Underwood  v.  Hart,  23  Vt.  R.  120, 
where  the  subject  of  the  admissions  of  agents  is  discussed,  and  the  cases  revised. 

If  a  contract  under  seal  be  enlarged  by  parol  and  subsequently  performed,  or 
if  the  terms  of  the  contract  under  seal  be  varied  by  parol,  the  proper  remedy  is 
by  an  action  of  assumpsit.  Sherman  v.  Vermont  Central  Railw.,  24  Vt.  R.  347  ; 
Barker  v.  Troy  &  Rutland  Railw.,  27  Vt.  R.  774.  In  Childs  v.  The  Somerset 
and  Kennebec  Railw.  in  the  Circuit  Court  of  the  United  States,  before  Mr. 
Justice  Curtis,  20  Law  Rep.  561,  it  was  held,  that  where  the  plaintiff,  by  special 
contract,  agreed  to  build  certain  bridges  and  depots  for  the  defendant  corpora- 
tion, for  which  he  was  to  be  paid  partly  in  cash  and  partly  in  shares  of  their  cap- 
ital stock,  and  in  the  progress  of  the  enterprise  it  became  necessary  to  do  much 
extra  work,  and  furnish  materials  not  provided  for  in  the  special  contract ;  that 
the  plaintiff  was  entitled  to  recover  the  whole  value  of  the  extra  work  and  ma- 
terials thus  furnished  in  money,  upon  an  implied  assumpsit,  and  that  the  agree- 
ment to  take  pay  in  shares  did  not  extend  to  this  part  of  the  work. 

*  Kirk  v.  The  Guardians  of  the  Bromley  Union,  2  Phil.  640 ;  Thayer  v.  The 

Vermont    Central  Railw.,  24  Vt.  R.  440;    Herrick  v.  Same,  27  Vt.    R.  673  ; 

Vanderwerker  v.  Same,  27  Vt.  R.  125,  130. 

*204 


412  CONSTRUCTION    OF   RAILWAYS.  §  114. 

tract  requiring  written  directions  for  all  the  work,  had  no  ten- 
dency to  prove  a  contract  binding  the  company.5 

4.  In  one  very  well-considered  case  6  upon  the  subject  of  extra 
work,  not  authorized  in  the  manner  specified  in  the  contract, 
it  is  said  by  the  Vice-Chancellor :  "  From  what  I  have  been  in- 
formed of  the  course  taken  at  law  in  these  cases,  it  is  this :  If, 
in  an  action  by  a  contractor,  it  appears  that  the  company  have 
the  benefit  of  the  work,  done  with  their  knowledge,  the  court  of 
law  does  not  allow  the  company  to  take  the  benefit  of  that  work 
without  paying  for  it,  although  in  covenant  (or  any  action  upon 
the  contract)  the  contractor  cannot  recover."  This  may  be  in 
accordance  with  the  general  rules  of  law  applicable  to  the  sub- 
ject.7 

*SECTION   X. 

If  one  Parly  repudiate  the  Contract,  the  other  may  sue  presently. 
—  Inevitable  Accident. 

1.  Part})  repudiating  excuses  the  other.  I  3.  President  cannot  bind  the  company. 

2.  New  contract  valid.  \  4.  Effect  of  inevitable  accident. 

§  114.  1.  Questions  often  arise  in  regard  to  the  right  of  a  par- 
ty to  sue  for  damages  before  the  time  for  payment  arrives,  and  be- 
fore he  has  fully  performed  on  his  part.  But  it  seems  now  to  be 
well  settled,  that  where  one  party  absolutely  repudiates  the  con- 
tract on  his  part,  he  thereby  exonerates  the  other  from  further  per- 
formance, and  exposes  himself  presently  to  an  action  for  damages.1 

6  Homersham  v.  Wolverhampton  Waterworks  Co.,  6  Railw.  C.  790.  Pollock, 
Ch.  B.,  said  :  "  The  company  is  not  bound  by  the  mere  order  of  the  engineer, 
or  by  the  contract  with  one  director." 

6  Nixon  v.  Taff  Vale  Railw.,  7  Hare,  136.    But  see  post,  §  130,  143. 

T  Dyer  v.  Jones,  8  Vt.  R.  205  ;  Gilman  v.  Hall,  11  Id.  511.  But,  in  many 
cases,  the  work  is  done  by  a  sub-contractor,  and  enures  to  the  benefit  of  the 
original  contractor,  as  in  Thayer  v.  Vermont  Central  Railw.,  24  Vt,  R.  440,  and 
would  not  therefore  give  any  right  of  action  against  the  company,  although  in 
one  sense  they  may  put  the  work  to  their  own  use,  and  so  may  be  said  to  have 
the  benefit  of  it,  to  some  extent. 

1  Cort  v.  The  Ambergate,  Not.  B.  &  E.  J.  Railw.,  6  Eng.  L.  &  Eq.  230 ; 
Blanche  v.  Colburn,  8  Bing.  14 ;  Hochster  v.  De  Latour,  20  Eng.  L.  &  Eq.  157. 
But  in  an  action  to  recover  damages  on  such  contract,  the  jury  are  not  to  go 
into  conjectured  profits  resulting  from  a  sub-contract  very  much  below  what  the 
plaintiff  was  to  be  paid,  but  only  the  difference  between  the  contract  price  and 

*205 


§114.  REPUDIATION.  —  INEVITABLE   ACCIDENT.  413 

2.  Where  the  contract  is  unconditionally  repudiated  by  one 
party,  before  it  is  fully  performed,  it  is  competent  for  the  other 
to  stipulate  for  its  performance,  upon  different  terms,  no  doubt. 
And  such  stipulation,  although  not  under  seal,  would  probably 
be  regarded  as  made  upon  a  valid  and  sufficient  consideration ; 
and  if  made  by  an  agent  of  the  former  party  to  the  contract,  but 
who  had  not  authority  to  bind  his  principal  to  such  contract,  it 
would  nevertheless  be  binding  upon  the  agent  and  other  party 
contracting,  and  would  not  be  required  to  be  in  writing,  as  it 
would  be  an  original  and  not  a  collateral  undertaking. 

3.  But  it  has  been  held,  that  after  a  railway  company  has 
entered  into  a  written  contract,  for  the  performance  of  certain 
work,  the  promise  of  its  president  to  allow  additional  compensa- 
tion to  the  contractors,  for  the  same  work,  is  without  considera- 
tion and  not  binding  upon  the  company.2 

4.  A  very  singular  question  arose  in  a  late  English  case.3 
The  plaintiff  agreed  to  make  and  erect  on  premises,  under  the 
control  of  the  defendants,  certain  machinery,  and  the  latter  were 
to  provide  all  necessary  brick  work,  &c.  Before  the  works  were 
completed  the  buildings  in  which  the  work  was  to  be  done  were 
destroyed  by  fire.  It  was  held  the  plaintiffs  were  entitled  to  re- 
cover for  the  work  already  done  by  them  before  the  fire,  and 
that  it  was  an  implied  term  of  the  contract  that  the  defendant 
should  provide  the  buildings  in  which  the  work  was  to  be  done, 
and  enable  the  plaintiffs  to  do  their  part  of  the  work  and  there- 
fore that  the  defendant  was  not  relieved  by  the  occurrence  of  the 
fire ;  as  a  party  who  contracts  to  do  a  thing  is  bound  to  carry 
out  his  engagement,  or  to  make  compensation,  notwithstanding 
he  is  prevented  by  inevitable  accident. 

the  value  of  doing  the  work,  at  the  time  of  the  breach,  can  be  given.  Masterton 
v.  Mayor  of  Brooklyn,  7  Hill,  61. 

-  Colcock  v.  Louisville  Railw.,  1  Strobhart,  329 ;  Nesbitt  v.  L.  C.  &  C.  Kailw., 
2  Speers,  S.  C.  R.  697.  The  controversy  here  is  in  regard  to  hard  pan  excava- 
tion. And  as  the  plaintiff  contracted  to  do  all  the  work  on  the  road,  and  to  con- 
struct the  road-bed,  and  his  contract  only  provided  for  earth  and  rock  excava- 
tion, he  is  bound  to  accept  his  estimates  under  the  contract,  and  especially,  after 
having  done  so,  he  cannot  claim  extra  compensation  for  excavating  hard  pan, 
even  if  he  show  that,  by  usage,  "  earth  "  has  a  technical  meaning,  and  does  not 
include  hard  pan. 

3  Appleby  v.  Meyers,  12  Jur.  N.  S.  500. 


414  CONSTRUCTION   OF   RAILWAYS.  §  115. 


*SECTION    XI. 

Decisions  of  Referees  and  Arbitrators  in  regard  to  Construction 

Contracts. 

1 .  Award  valid  if  substantially  correct.  \  2.   Court  ivill  not  set  aside  award,  where  it 

does  substantial  justice. 

§  115.  1.  The  general  rule  of  law,  in  regard  to  the  decisions 
of  arbitrators  and  referees,  by  which  they  have  been  held  bind- 
ing upon  the  parties,  although  not  made  strictly  according  to  the 
technical  rules  of  law,  if  understandingly  made,  and  exempt 
from  fraud  or  partiality,  has  been  sometimes  applied  to  contracts 
for  construction  of  railway  works,  the  settlement  of  which  has 
been  determined  by  an  umpire.  As  where  the  contract  reserved 
the  right  to  the  company  to  alter  the  gradients  of  the  road,  and 
to  substitute  piling  for  embankment  without  extra  allowance. 
These  alterations  were  made,  and  thus  increased  the  expense 
to  the  contractors.  The  final  settlement  being  made  by  referees, 
to  whom  "  all  matters  in  dispute,  with  the  contract  as  a  basis  of 
settlement,"' were  referred,  and  they  having  allowed  the  contrac- 
tor compensation  for  this  increased  expense,  it  was  held  to  be 
within  the  power  conferred  upon  the  referees.1 

2.  So,  too,  where  the  contract  specified  a  price  for  earth  exca- 
vation, and  another  for  rock  excavation,  but  nothing  was  said  of 
"  hard  pan,"  a  good  deal  of  which  occurred  in  the  course  of  the 
work,  which  was  admitted  to  be  more  expensive  then  the  ordi- 
nary earth  excavation.  The  whole  subject  was  referred,  and  the 
plaintiff  claimed  in  his  specification  thirty  cents  per  yard  for 
excavating  hard  pan,  and  the  referees  allowed  him  fifty  cents 
on  trial.  The  defendants  objected  to  the  allowance,  being  more 
than  the  claim.  But  the  court  said,  where  the  testimony  was 
received  without  objection,  and  showed  the  party  entitled  to  re- 

1  Porter  v.  Buckfield  Branch  Railw.,  32  Maine  R.  539.  In  this  case  the  con- 
tract provided  for  payment  of  a  portion  of  the  price  of  the  work  in  the  stock  of 
the  company,  and  the  arbitrators  directed,  that  the  same  proportion  of  their 
award  should  be  paid  by  issuing  certificates  of  stock,  and  the  award  was  held 
valid  in  this  particular  also. 
*206 


§  116.  DECISIONS   OF   COMPANY'S  ENGINEERS.  415 

'cover,  beyond  his  specification,  the  court  will  not  set  aside  the 
report,  or  grant  a  new  *  trial,  where  it  is  apparent  the  party  has 
not  recovered  more  than  what  he  is  fairly  entitled  to.2 

SECTION    XII. 

Decisions  of  Company's  Engineers. 

* 

1.  Estimates  for  advances,  mere  approxima- 

tions, under  English  practice. 

2.  But  where  the  engineer's  estimates  are  final, 

can  only  be  set  aside  for  partiality  or 
mistake. 

3.  Contractor  bound  by  practical  construction 

of  the  contract. 


4.  Estimates  do  not  conclude  matters,  not  re- 
ferred. 

5.  If  contractor  consent  to  accept  pay  in  de- 
preciated orders,  he  is  bound  by  it. 

6.  Right  of  appeal  lost  by  acquiescence. 

7.  Engineer  cannot  delegate  his  authority. 

8.  Arbitrator   must  notify  parties,  and  act 

bona  fide. 


§  116.  1.  The  English  contracts  for  railway  construction  gen- 
erally contain  a  provision  for  referring  the  final  settlement  with 
the  contractor  to  an  indifferent  board  of  arbitrators,  or  one  se- 
lected by  the  parties  respectively,  with  the  umpirage  of  a  third 
party  in  case  of  disagreement.1  Under  such  contracts  the  pro- 
vision in  regard  to  monthly  or  semi-monthly  estimates  is  such, 
that  they  are  understood  to  be  mere  approximations,  and  it  is 
only  equivalent  to  a  provision,  that  the  company  shall  advance, 
from  time  to  time  as  the  work  progresses,  a  stipulated  propor- 
tion of  the  work,  which  they  shall,  by  their  engineer,  adjudge  to 
be  done.  All  that  is  requisite"  to  the  validity  of  such  estimates 
is,  that  they  were  made  bond  fide,  and  with  the  intention  of  act- 
ing according  to  the  exigency  of  the  contract.1 

2  Du  Bois  v.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  334. 

1  Ranger  v.  Great  Western  Railw.,  27  Eng.  L.  &  Eq.  35,  46. 

So  where  in  a  canal  contract  it  is  provided,  that  the  engineer  "  shall  in  all 
cases  determine  the  amount  or  quality  of  the  several  kinds  of  work  "  to  be  done, 
and  the  compensation  therefor,  and  either  party  had  the  right  to  compel  an  in- 
different reference,  where  they  felt  aggrieved  by  the  decision  of  the  engineer, 
"  to  investigate  and  determine  all  questions  that  may  arise  relating  to  compensa- 
tion for  work  done  under  this  contract " ;  it  was  held,  this  umpirage  only  ex- 
tended to  the  final  account  of  the  engineer.     People  v.  Benton,  7  Barb.  209. 

Under  a  contract  where  the  company  stipulated  to  pay  the  contractor  ninety 
per  cent  of  work  done,  according  to  the  engineer's  estimate ;  and  the  engineer 
had  the  right  to  declare  the  contract  abandoned,  and  in  that  event  the  ten  per 

*207 


416  CONSTRUCTION   OF   RAILWAYS.  §  116. 

2.  But  where  the  contract  contains  provisions  referring  the 
estimate  of  the  quantity  and  quality  of  the  work  absolutely  to 
the  determination  of  the  company's  engineer,  or  any  particular 
party,  and  provides,  as  is  not  uncommori  in  this  country,  that 
his  decision  shall  be  final,  no  relief  from  his  determination  can 
ordinarily  be  obtained,  even  in  a  court  of  equity,  unless  upon 
the  ground  of  *  partiality,  or  obvious  mistake,  which  latter  is 
held  to  apply  rather  to  the  quantity,  than  the  quality  of  the 
work,  this  being  purely  matter  of  judgment  and  discretion,  and 
which  was  intended  to  be  concluded  by  the  opinion  of  the  ar- 
bitrator.2 But  in  a  recent  English  case3  before  Vice-Chancellor 
Stuart,  where  in  a  building  contract  the  corporation  reserved 
the  power  to  determine  the  contract,  which  they  afterwards 
exercised,  and  it  was  stipulated  that  any  dispute  or  difference 
which  might  arise  between  the  contracting  parties  should  be 
referred  to  and  settled  by  the  engineer,  that  it  should  not  be 
competent  for  either  party  to  except  at  law  or  equity  to  his 
determination,  and  that  without  the  certificate  of  the  engi- 
neer no  money  should  be  paid  to  the  plaintiffs";  it  appearing 
that  the  engineer  had  never  refused  to  discharge  his  duty  ac- 
cording to  the  contract,  and  had  nothing  to  disqualify  him  to 
act,  and  was  ready  and  willing  to  proceed  and  determine  all 

cent,  became  forfeited,  and  the  engineer  did  so  declare  ;  it  was  held  that  this  did 
not  absolve  the  company  from  the  payment  of  the  ninety  per  cent,  upon  the  work 
done  by  the  contractor,  before  the  contract  was  declared  abandoned.  Ricker  v. 
Fairbanks,  40  Maine  R.  43. 

2  Herrick  v.  The  Vermont  Central  Railw.,  27  Vt.  R.  673;  Kidwell  v.  Bait.  & 
Ohio  Railw.,  infra;  Alton  Railw.  v.  Northcott,  15  111.  R.  49.  In  this  case  it 
was  held  that  the  estimate  of  the  umpire  will  not  bind  the  parties,  if  based  on  an 
erroneous  view  of  the  contract. 

So  a  court  of  equity  may  correct  the  mistakes  of  the  engineer,  although  the 
contract  stipulates  that  his  decision  shall  be  final.  Mansfield  &  Sandusky  Railw. 
v.  Veeder,  17  Ohio  R.  385.  So,  too,  where  the  engineer  proved  to  be  a  stock- 
holder in  the  company.  Milnor  v.  The  Georgia  R.  &  Banking  Co.,  4  Ga.  R. 
385.  And  in  Kerns  v.  O'Reilley,  Leg.  Int.  Aug.  31,  1866,  it  was  decided  that 
the  award  of  an  engineer  between  contractor  and  sub-contractor  is  final.  And 
in  Leech  v  Caldwell,  id.  Nov.  16,  1866,  it  was  held,  that  where  the  sub-contractor 
covenanted  to  abide  the  decision  of  the  engineer  of  the  work  in  any  dispute 
arising  on  the  contract,  the  alleged  fraud  of  the  engineer  did  not  ofTset  the 
covenant. 

*  Scott  v.  Corporation  of  Liverpool,  31  Law  Times,  147,  1858. 
*208 


§  116.  DECISIONS   OF   COMPANY'S   ENGINEERS.  417 

matters  at  issue  between  the  parties,  it  was  held  that  there  was 
no  ground  for  the  equitable  interference  of  the  court. 

3.  If  the  contractor  acquiesce  in  a  particular  construction  of 
his  contract,  and  allow  his  estimates,  from  time  to  time,  to  be 
made  upon  such  basis,  he  will  be  bound  by  it  thereafter.4    • 

4.  Where  the  contract  specifies  a  price  for  rock  excavation, 
and  another  for  ordinary  earth  excavation,  and  in  the  course  of 
the  work  a  large  quantity  of  hard  pan  was  excavated,  for  which 
no  provision  was  made  in  the  contract,  and  the  othe„r  party  con- 
ceded that  compensation  was  due,  beyond  the  price  fixed  in  the 
contract  for  ordinary  earth  excavation,  it  was  decided  that  the 
contractor  might  recover  upon  a  quantum  meruit  count.  And 
where  the  contract  also  provided  that  the  engineer  should  finally 
determine  all  questions  necessary  to  the  final  adjustment  of  the 
contract,  this  did  not  render  the  engineer's  estimate  conclusive, 
as  to  the  sum  to  be  paid  for  excavating  hard  pan.5  These  points 
are  both  decided,  mainly,  it  is  presumed,  upon  the  concession  of 
the  defendant,  that  the  hard  pan  excavation  was  a  matter  alto- 
gether outside  of  the  contract.  Otherwise  it  might  seem  diffi- 
cult to  maintain  their  entire  consistency  with  other  decided 
cases.6 

5.  Where  the  contract  gives  the  engineer  power  to  stop  the 
work,  when  the  means  of  carrying  it  forward  fail,  and  he  in- 
formed the  contractor  it  could  not  proceed  unless  he  would  re- 
ceive his  monthly  pay  in  orders,  which  were  at  a  discount,  and 
the  *  contractor  consents  to  receive  them,  he  is  not  entitled  to 
recover  of  the  company  the  amount  of  such  depreciation.7 

6.  And  although  the  contractor,  by  the  contract,  had  the 
power  to  refuse  to  abide  by  the  final  estimates  of  the  engineer, 

4  Kidwell  v.  The  Baltimore  &  Ohio  Railw.,  11  Grattan,  676.  See  also  Com- 
monwealth v.  Clarkson,  3  Penn.  St.,  277. 

5  Dubois  v.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  334 ;  s.  c.  15  Id.  87.  See 
s.  c.  4  Wend.  285.  But  see  ante,  §  114;  Nesbitt  v.  L.  C.  &c.  Railw.,  2  Speers, 
697,  where  hard  pan  seems  to  be  regarded  as  earth  excavation,  unless  there  is 
some  special  provision  in  the  contract  for  estimating  it  otherwise. 

6  Morgan  v.  Birnie,  9  Bing.  672.  See  also  Sherman  v.  The  Mayor  of  New 
York,  1  Comst.  316,  320. 

T  Kidwell  v.  The  Baltimore  &  Ohio  Railw.,  11  Grattan,  676.  See  also  Com- 
monwealth v.  Clarkson,  3  Penn.  St.,  277,  upon  the  general  subject  of  the  conclu- 
siveness of  the  engineer's  estimate. 

VOL.  I.  27  *209 


418 


CONSTRUCTION   OF   RAILWAYS. 


§117. 


yet  if  he  submitted  to  him  his  charges  for  the  work  done,  and 
made  no  objection  to  his  making  up  the  final  estimate,  he  is 
bound  thereby.7 

7.  Where  in  a  contract  for  work  upon  a  railway  it  was  stipu- 
lated that  the  work  should  be  measured  by  defendant's  engineer 
or  agent,  which  should  be  final  and  conclusive,  it  was  held  that 
such  person  could  not  delegate  his  authority,  but  that  it  was 
indispensable  that  he  should  himself  make  the  admeasurement. 
But  in  making  the  admeasurement,  it  is  not  necessary  that  he 
should  give  previous  notice  to  the  parties  to  enable  them  to  be 
present.8 

8.  But  if  such  agent  is  to  make  an  estimate  of  certain  ex- 
penses to  be  allowed  the  plaintiff,  and  he  proceeds  to  do  so,  in 
the  absence  of  plaintiff  and  without  notice  to  him,  he  will  not 
be  bound  by  the  estimate.  But  such  estimate  will  not  be  af- 
fected by  the  inadequacy  of  the  amount,  or  that  the  usual  means 
were  not  resorted  to  for  ascertaining  facts,  if  the  umpire  act 
bond  fide,  which  is  a  fact  to  be  determined  by  the  jury.8 

SECTION    XIII. 

Relief  in  Equity  from  Decisions  of  Company's  Engineers. 


1 .  Facts  of  an  important  case  stated. 

2.  Claim  of  contractor  in  the  bill. 

3.  Bill  sustained.     Amendment  alleging  mis- 

take in  estimates. 

4.  Relief  only  to  be  had  in  equity. 

5.  Proof  of  fraud  must  be  very  clear. 

6.  Engineer  being  shareholder,  not  valid  ob- 

jection. 

7.  Decision  of  engineer  conclusive  as  to  qual- 

ity of  work,  but  not  as  to  quantity. 

8.  Neio  contract  condonation  of  old  claims. 

9.  Account  ordered  after  company  had  com- 

pleted work. 


10.  Money  penalties  cannot  be  relieved  against 

unless  for  fraud. 
n.  1.  Review  of  the  cases  upon  this  subject. 

11.  Engineers'  estimates  not  conclusive  unless 

so  agreed. 

Contractor,  whose  work  surrendered  by 
supplemental  contract,  entitled  to  full 
compensation. 

Direction  of  umpire  binding  on  contract- 
ing parties,  and  dispenses  with  certifi- 
cate of  full  performance. 


12 


13 


117.    1.    In  consequence  of  the  peculiar  stringency  of  the 
terms  of  contracts  for  railway  construction,  applications  for  re- 

8  Wilson  v.  York  &  Md.  Railw.  Co.,  11   Gill  &  Johns.  58.     Gross  negligence 
is  not  fraud,  but  is  evidence  to  be  considered  by  the  jury.     Id. 


§  117.        EQUITABLE   RELIEF   FROM   DECISION   OF   ENGINEERS.  419 

lief  in  *  equity  have  not  been  unfrequent.     In  one  case1  it  was 
agreed  by  the  contract  that  every  fortnight  the  engineer  of  the 

1  Ranger  v.  Great  Western  Railw.,  1  Railw.  C.  1  ;  s.  c.  13  Sim.  368. 

And  where  by  the  contract  the  work  was  to  be  done  to  the  satisfaction  of  the 
engineer  of  the  defendants,  and  suit  was  brought  without  obtaining  the  judgment 
of  the  engineer,  held,  that  it  could  not  be  maintained.  Parkes  v.  The  Great 
Western  Railw.,  3  Railw.  C.  1 7. 

This  case  is  also  found  in  3  Railw.  C.  298,  and  in  27  Eng.  Law  &  Eq.  35. 

This  case  came  before  the  House  of  Lords,  on  appeal  for  final  determination, 
May  26,  1854,  just  ten  years  after  the  decision  in  the  Vice-Chancellor's  court. 
The  judgment  was  in  the  main  affirmed,  but  in  form  was  reversed,  and  sent  back 
to  the  Court  of  Chancery,  for  an  account  to  be  taken  between  the  parties,  accord- 
ing to  their  respective  rights,  as  established  by  the  final  decision. 

The  case,  as  it  appeared  on  the  final  hearing,  is  deserving  of  a  more  extended 
notice.  The  following  is  the  statement  of  the  case,  and  the  points  ruled  in  the 
House  of  Lords. 

In  a  contract  between  R.  and  a  railway  company  for  the  performance  by  R. 
of  a  portion  of  the  line  of  railway,  after  reciting  that  R.  agreed  to  secure  the  due 
performance  of  his  contract,  by  his  bond  in  the  penal  sum  of  £4,000,  conditioned 
for  the  payment  to  the  company  of  certain  fixed  sums  for  every  week  in  which 
the  work  should  not  be  completed  according  to  the  contract,  the  penalty  in  each 
successive  week  to  increase  in  a  fixed  proportion,  it  was  witnessed,  amongst  other 
things,  that  in  case  R.  should  become  insolvent,  &c,  or  should,  from  any  cause 
whatsoever  (not  the  act  of  the  company),  not  proceed  in  the  works  to  the  satis- 
faction of  the  company,  the  company  might  give  to  R.  a  notice  in  writing  requir- 
ing him  to  proceed  with  the  said  works,  and  in  case  R.  should  for  seven  days  after 
such  notice  make  default  in  commencing  or  regularly  proceeding  with  the  said 
works,  it  should  be  lawful  for  the  company  to  employ  other  persons  to  complete 
the  works,  and  pay  them  out  of  the  money  which  should  be  then  remaining  due 
to  R.  on  account  of  his  contract ;  and  that  the  moneys  previously  paid  to  R.  on 
account  of  any  works  should  be  considered  as  the  full  value,  and  be  taken  by  him 
as  in  full  payment  and  satisfaction  for  all  works  done  by  him ;  and  that  all 
moneys  which  either  then  or  thereafter  would  have  been  payable  to  R.  together 
with  all  the  tools  and  materials  then  being  upon  the  works,  should,  upon  such 
default  as  aforesaid,  become  and  be  in  all  respects  considered  as  the  absolute 
property  of  the  company ;  and  that  if  such  moneys,  tools,  and  materials  should 
not  be  sufficient  to  pay  for  the  completion  of  the  works,  then  R.  should  make 
good  such  deficiency  on  demand.  It  was  then  further  witnessed,  and  the 
company  covenanted  to  pay  to  R.  for  the  completion  of  the  works  the  sum  of 
£63,028  16s.,  in  the  following  manner,  namely,  every  fourteen  days  four  fifth 
parts  of  the  whole  value  of  the  said  works  which  shall  have  been  actually  per- 
formed during  the  preceding  fourteen  days,  until  there  should  be  a  reserved  fund 
of  £4,000,  and  then  every  fourteen  days  to  pay  the  full  value  of  such  works,  such 
value  to  be  estimated  by  the  principal  engineer  or  his  assistant,  having  reference 
as  well  to  the  prices  in  the  schedule  (as  to  extra  work)  as  to  the  entire  cost 

*210 


420  CONSTRUCTION   OF   RAILWAYS.  §  117. 

*  company  should  ascertain  the  value  of  the  work  d®ne,  accord- 
ing to  its  quality  and  relative  proportion  to  the  whole  work ;  the 

of  the  whole  works ;  and  at  the  expiration  of  one  calendar  month  after  the  com- 
pletion of  the  entire  works,  to  pay  one  moiety  of  the  £4,000  so  retained  in  the 
hands  of  the  company,  and  at  the  expiration  of  one  year  and  a  month,  the  re- 
maining moiety  of  the  £4,000.  And  it  was  lastly  agreed,  that  during  the  progress 
of  the  works,  the  decision  of  the  principal  engineer  for  the  time  being  of  the 
company,  with  respect  to  the  amount,  state,  condition,  &c,  or  any  other  matter 
or  thing  whatsoever  relating  to  the  same,  shall  be  final,  and  without  appeal ;  but 
in  case  of  dispute,  after  the  completion  of  the  contract,  as  to  any  matter  of 
charge  or  account  between  the  company  and  R.,  such  dispute  shall  be  finally 
settled  by  the  arbitration  of  the  said  engineer  on  the  part  of  the  company,  and 
an  engineer  appointed  by  R.  on  his  part,  or  if  they  disagree,  by  an  arbitrator  to 
be  named  by  them.  After  R.  had  proceeded  to  a  very  considerable  extent  to- 
wards the  completion  of  his  contract,  the  company,  being  dissatisfied  with  the 
progress  of  the  works,  gave  the  notice  to  R.  mentioned  in  the  contract,  and  after 
seven  days  they  took  possession  of  the  works,  and  of  all  the  tools  and  materials 
thereon,  and  completed  the  works  by  other  parties.  R.  filed  his  bill,  setting  up 
a  case  of  fraud  against  the  company  in  concealing  the  nature  of  the  strata  through 
which  cuttings  and  tunnels  were  to  be  made,  and  insisting  that  he  was  entitled 
to  be  paid  for  those  works  at  fair  prices,  regardless  of  the  contract ;  that  the 
fortnightly  certificates  of  the  value  of  the  works  given  by  B.,  the  engineer  of  the 
company,  were  void,  and  not  binding  upon  him,  in  consequence  of  B.  being  a 
shareholder  in  the  company  ;  that  he  was  entitled  to  be  relieved  against  certain 
money  penalties  which  had  been  charged  against  him  in  the  engineer's  certifi- 
cates ;  that  the  company  were  not  justified  in  taking  possession  of  the  works, 
tools,  and  materials  ;  and  that  he  was  entitled  to  have  an  account  taken  of  the 
value  of  the  works  done,  on  the  footing  that  there  were  no  contracts,  or  that  they 
were  abandoned  ;  and  that  the  company  might  be  debited  with  the  value  of  the 
engines,  tools,  materials,  articles,  and  things  of  which  the  company  took  possession. 

Held,  first,  that  no  case  of  fraud  had  been  made  out.  But,  semble,  that  although 
a  corporation  cannot  be  guilty  of  fraud,  yet  if  their  agents  employed  in  carrying 
out  a  trading  speculation  be  guilty  of  fraud,  the  corporation  will  be  liable.  Per 
the  Lord  Chancellor. 

Secondly,  that  the  principle  which  prevents  a  person  being  a  judge  in  his 
own  cause  (Dimes  v.  The  Grand  Junction  Canal  Co.T  17  Jur.  73;  s.  c.  16  Eng. 
L.  &  Eq.  63),  does  not  apply  to  the  case  of  the  engineer  of  a  railway  company 
holding  shares  in  that  company,  who,  according  to  the  terms  of  a  contract  be- 
tween the  company  and  a  contractor,  was,  during  the  progress  of  the  works,  to 
give  periodical  certificates  of  the  value  of  the  works  done,  but  which,  on  the 
completion  of  the  contract,  were  not  final. 

Thirdly,  that  tha  money  penalties  had  been  properly  charged  against  R., 
they  being,  upon  the  proper  construction  of  the  contract,  not  penalties,  but 
liquidated  damages. 

Fourthly,  that  even  assuming  that  the  company  were  not  justified  in  taking 
*211 


§  117.       EQUITABLE  RELIEF  FROM   DECISION   OF  ENGINEERS.  421 

contractor  *  to  receive  eighty  per  centum,  the  remainder  being 
reserved  to  enforce  the  completion  of  the  works.     That  if  the 

possession  of  the  works,  tools,  and  materials,  after  the  notice  given,  R.  was  not 
entitled  to  treat  the  contract  as  not  existing,  or  as  abandoned.  R.'s  right  would 
have  been  by  action  for  damages,  and  the  seizure  by  the  company  formed  no 
ground  for  such  equitable  relief  as  was  asked. 

Fifthly,  that,  upon  the  true  construction  of  the  contract,  the  company  did  not, 
according  to  their  contention,  upon  taking  possession  of  the  works  and  plant 
after  notice,  become  absolute  owners  of  the  tools  and  materials,  &c. ;  this  whole 
provision  is  to  be  regarded,  not  in  the  nature  of  a  penalty,  but  as  mere  machinery 
for  enabling  the  company  to  complete  the  works  at  the  cost  of  R.,  and  the  com- 
pany are  bound  to  account  for  the  value  of  the  tools  and  materials,  in  settling 
their  accounts  with  him,  which  accounts  were  decreed  to  be  taken  on  the  footing 
of  the  contract.  In  regard  to  the  competency  of  the  engineer,  the  learned 
chancellor  said :  "  When  it  is  stipulated  that  certain  questions  shall  be  decided 
by  the  engineer  appointed  by  the  company,  that  is,  in  fact,  a  stipulation  that 
they  shall  be  decided  by  the  company.  It  is  obvious  that  there  never  was  any 
intention  of  leaving  to  third  persons  the  decision  of  questions  arising  during  the 
progress  of  the  works.  The  company  reserved  the  decision  for  itself,  acting, 
however,  as  from  the  nature  of  things  it  must  act,  by  an  agent,  and  that  agent 
was,  for  this  purpose,  the  engineer.  His  decisions  were,  in  fact,  their  decisions. 
The  contract  did  not  hold  out,  or  pretend  to  hold  out,  to  the  appellant,  that  he 
was  to  look  to  the  engineer  in  any  other  character  than  as  the  impersonation  of 
the  company.  In  fact,  the  contract  treats  his  acts  and  their  acts,  for  many  pur- 
poses, as  equivalent,  or  rather  identical.  I  am,  therefore,  of  opinion,  that  the 
principle  on  which  the  doctrines  as  to  a  judge  rest,  wholly  fails  as  to  its  applica- 
tion to  this  case.  The  company's  engineer  was  not  intended  to  be  an  impartial 
judge,  but  the  organ  of  one  of  the  contracting  parties.  The  company  stipulated 
that  their  engineer  for  the  time  being,  whosoever  he  might  be,  should  be  the  per- 
son to  decide  disputes  pending  the  progress  of  the  works,  and  the  appellant,  by 
assenting  to  that  stipulation,  put  it  out  of  his  power  to  object,  on  the  ground  of 
what  has  been  called  the  "  unindifferency  "  of  the  person  by  whose  decision  he 
agreed  to  be  bound.  It  is  to  be  observed,  that  the  person  to  decide  was  not  a 
particular  individual,  in  whom,  notwithstanding  his  relation  to  the  company, 
the  contractor  might  have  so  much  confidence  as  to  agree  to  be  bound  by  his 
awards,  but  any  one  from  time  to  time  the  company  might  choose  to  select  as 
their  engineer.  The  appellant  alleges  that  he  did  not  know  the  fact  that  Mr. 
Brunei  was  a  shareholder  until  more  than  two  years  after  the  works  had  been 
begun. 

"  But  he  must  have  known  that  the  company  had  it  in  their  power  to  appoint 
another  engineer  in  Mr.  Brunei's  place,  who  might  hold  shares,  or  that  Mr. 
Brunei  himself  might  purchase  shares.  Without  the  intervention  of  the  engi- 
neer, the  contract  was,  as  it  were,  paralyzed ;  nothing  could  be  done  under  it ; 
and  it  surely  can  hardly  be  argued  that  a  person  appointed  engineer  could,  by 
purchasing  shares,  render  the  contract  practically  inoperative." 

*212 


422  CONSTRUCTION   OF   RAILWAYS.  §  117- 

engineer  should  *  not  be  satisfied  with  the  worts,  the  company 
should  be  enabled,  after  notice  given  to  the  contractor,  and  his 

It  is  regarded  as  questionable,  how  far  a  contract,  vesting  the  property  of 
the  contractor  in  the  company,  in  the  event  of  his  insolvency  merely,  could  be 
maintained,  as  consistent  with  the  English  bankrupt  and  insolvent  laws.  Rouch 
v.  The  Great  W.  Railw.,  2  Railw.  C.  505.  But  this  objection  may  be  obviated 
by  the  company  stipulating  for  a  lien  merely ;  a  right  to  use  the  tools  and  ma- 
terials of  the  contractor  in  the  completion  of  the  work,  according  to  and  in  ful- 
filment of  his  contract.  Hawthorn  v.  Newcastle-upon-Tyne  &  N.  Shield  Railw., 
2  Railw.  C.  299.  It  is  said  in  one  case,  by  a  very  learned  equity  judge,  Lord 
Redesdale  (O'Connor  v.  Spaight,  1  Sch.  &  Lef.  309),  that  where  an  account  has 
become,  so  complicated  that  a  court  of  law  would  be  incompetent  to  examine  it, 
upon  a  trial  at  Nisi  Prius,  with  all  necessary  accuracy,  a  court  of  equity  will, 
upon  that  ground  alone,  take  cognizance  of  the  case.  But  a  court  of  equity 
will  not  ordinarily  interfere  in  any  such  case,  and  especially  when  the  party 
applying  has  been  guilty  of  laches.  Northwestern  Railw.  v.  Martin,  2  Phill.  758. 
See  also  Taff-Vale  Railw.  v.  Nixon,  1  H.  L.  Cas.  Ill  ;  Faley  v.  Hill,  2  Id.  45,  46. 
See  also  Nixon  v.  Taff-Vale  Railw.,  7  Hare,  136.  It  is  questionable,  we  think, 
whether  any  such  distinct  ground  of  exclusive  equity  jurisdiction,  in  matters  of 
account,  as  the  complicated  nature  of  the  transactions  can  be  maintained,  but 
there  is  -little  doubt  this  would  be  regarded  as  an  important  consideration  in 
guiding  the  discretion  of  that  court,  in  assuming  such  jurisdiction,  in  any  par- 
ticular case  pending  in  a  court  of  law.  But  sometimes  where  the  contractor 
claims  the  right  to  appropriate  payments,  made  generally,  to  a  different  contract 
from  that  upon  which  the  company  desire  it  to  apply,  it  becomes  necessary  to 
draw  the  whole  into  a  court  of  equity.  Southeastern  Railw.  v.  Brogden,  14  Jur. 
795  ;  s.  c.  3  McN.  &  G.  8.  See  upon  the  general  subject  Waring  v.  The  Manch. 
&  Sheffield  &  L.  Railw.,  7  Hare,  482.  An  important  case,  upon  a  contract  for 
railway  construction,  finally  determined  in  the  national  tribunal  of  last  resort, 
upon  elaborate  argument  and  great  consideration,  and  which  involved  most  of 
the  subjects  involved  in  the  case  of  Ranger  v.  the  Great  Western  Railw.,'  may 
be  regarded,  perhaps,  as  bearing  something  of  the  same  relation  to  cases  in  this 
country  upon  that  subject  which  the  English  case  does  to  cases  of  that  kind  in 
the  English  courts. 

This  is  the  case  of  Philadelphia,  AVilmington,  &  Baltimore  Railw.  v.  Howard,  13 
How.  307 ;  s.  c.  1  Am.  Railw  C.  70.  It  came  into  the  United  States  Supreme 
Court  by  writ  of  error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Maryland.  The  facts  in  the  case  are  complicated,  and  the  points  involved 
numerous.  It  will  only  be  necessary  to  state  the  facts,  in  connection  with  the 
several  points  decided.     The  points  bearing  upon  this  subject  are :  — 

In  such  contract  the  covenant  to  finish  the  work  by  a  time  named  on  the  one 
part,  and  to  pay  monthly  on  the  other  part,  are  distinct  and  independent  cove- 
nants. And  a  right  to  annul  the  contract,  on  the  part  of  the  company,  at  any 
time,  did  not  include  a  right  to  forfeit  the  earnings  of  the  other  party  for  work 
done  prior  to  the  time  when  the  contract  was  annulled. 
*213 


§  117.       EQUITABLE   RELIEF   FROM   DECISION   OF   ENGINEERS.  423 

default  in  complying  *  for  seven  days  to  take  possession  of  the 
works,  thereupon  the  plant  and  materials  of  the  contractor,  and 

A  covenant  to  execute  the  work,  according  to  a  certain  schedule,  which 
mentioned  that  it  was  to  be  done  according  to  the  directions  of  the  engi- 
neer, bound  the  company  to  pay  for  work  done  according  to  his  directions, 
although  not  strictly  in  conformity  with  a  profile  showing  the  original  proximate 
estimates. 

And  when  the  contract  was  to  place  the  waste  earth  where  ordered  by  the 
engineer,  it  was  the  duty  of  the  engineer  to  provide  a  convenient  place,  and  if 
he  failed  to  do  so  the  other  party  is  entitled  to  damages. 

Where  the  contract  authorized  the  company  to  retain,  until  the  completion 
of  the  contract,  fifteen  per  cent,  of  the  earnings  of  the  contractor,  by  way  of 
indemnity  from  loss,  by  any  failure  to  perform  the  contract  by  the  contractor, 
it  was  held  this  was  not  to  be  regarded  as  a  forfeiture,  and  that  the  company,  if 
they  terminated  the  contract,  were  bound  to  pay  the  contractor  any  amount 
which  they  had  so  retained,  unless  the  jury  were  satisfied  the  company  had  sus- 
tained loss  by  the  default,  negligence,  or  misconduct  of  the  contractor,  which 
should  be  deducted. 

Where  the  contractor  was  delayed  in  the  progress  of  the  work,  by  an  injunc- 
tion out  of  Chancery,  he  is  entitled  to  no  damages,  unless  the  jury  find  that  the 
company  did  not  use  reasonable  diligence  in  obtaining  a  dissolution  of  the  in- 
junction. 

If  a  railway  company,  having  the  power  reserved  to  them  of  annulling  a 
contract  for  construction,  "  when,  in  their  opinion,  it  is  not  in  due  progress  of 
execution,"  or  the  contractor  is  "  irregular  or  negligent,"  it  was  held,  that  if  they 
exercised  this  power  for  the  purpose  of  having  the  work  done  cheaper,  or  of 
oppressing  and  injuring  the  contractor,  he  was  entitled  to  recover  damages  for 
any  loss  of  profit  he  might  have  sustained,  and  of  the  reasons  which  influenced 
the  company,  the  jury  were  to  be  judges. 

And  in  Herrick  v.  Vermont  Central  Railw.,  27  Vt.  R.  673,  the  following 
points  were  decided  upon  this  subject :  — 

A  stipulation  in  a  contract  for  the  construction,  in  part,  of  a  railway,  that 
"  the  engineer  shall  be  the  sole  judge  of  the  quality  and  quantity  of  the  work, 
and  from  his  decision  there  shall  be  no  appeal,"  is  binding  upon  the  parties,  and 
constitutes  the  engineer  an  arbitrator  or  umpire  between  them. 

Such  a  stipulation  imposes  upon  the  party  by  whom  the  engineers  are  to  be 
employed,  the  duty  of  employing  for'  such  engineers  competent,  upright,  and 
trustworthy  persons,  and  to  see  to  it  that  they  perform  the  service  expected  of 
them  at  a  proper  time  and  in  a  proper  manner. 

Such  a  stipulation,  when  construed  with  reference  to  its  subject-matter,  and 
the  ordinary  course  of  business,  does  not  require  the  estimates  to  be  made  or 
verified  by  the  chief  engineer,  but  has  reference  as  well  to  the  assistant,  or  res- 
ident engineer,  by  whom  such  estimates  are  usually  made. 

If  payment  for  the  work  performed  is  dependent  upon  and  to  be  made  ac- 
cording to  the  engineer's  estimates,  as  to  its  amount,  and  the  employing  party 

*2U 


424  CONSTRUCTION   OF  RAILWAYS.  §  117. 

all  the  work  done  and  not  paid  for,  and  the  reserved  fund  to  be 
forfeited  to  the  company. 

performs  its  duty  in  reference  to  the  employment  of  suitable  engineers,  &c,  the 
obligation  to  pay  will  not  arise  until  such  estimates  are  made. 

But  if  no  estimates  are  made,  through  the  neglect  or  fault  of  the  engineer,  or 
of  the  party  who  employs  him,  the  other  party  could  probably  recover,  at  law, 
for  the  work  performed  by  him,  without  any  engineer's  estimate  of  it. 

A  contract  providing  for  monthly  estimates  of  the  contractor's  work,  accord- 
ing to  which  he  is  to  be  paid,  imports  an  accurate  measurement  and  final  esti- 
mate for  each  month,  and  not  such  a  one  as  is  merely  approximate  or  conjec- 
tural. 

A  court  of  equity  has  jurisdiction  of  a  claim  to  be  paid  for  a  larger  amount 
of  work  done  under  such  a  contract  than  was  estimated  by  the  engineer,  where 
the  under-estimate  was  occasioned  either  by  mistake  or  fraud. 

The  Vermont  Central  Railway  Co.  contracted  with  B.  for  the  construction  of 
their  railway,  and  B.  contracted  with  the  plaintiff  for  the  construction  of  a  part 
of  it.  In  both  contracts  there  was  such  a  provision  in  reference  to  the  conclu- 
siveness of  the  engineer's  estimates.  Held,  that  there  was  no  privity  of  contract 
between  the  plaintiff  and  the  Vermont  Central  Railway  Co.,  and  that  he  could 
not  recover  of  them  for  work  not  estimated  by  the  engineer,  by  reason  only  of 
a  mistake,  which  they  had  not,  either  directly  or  indirectly,  caused  or  connived 
at ;  and  that  their  indebtedness  to  B.  for  the  same  work  for  which  he  was  in- 
debted to  the  plaintiff,  did  not  constitute  a  fund  against  which  the  plaintiff  had 
a  claim. 

But  if  there  was  any  connivance  on  the  part  of  the  Vermont  Central  Railway 
Co.,  or  their  agents,  in  bringing  about  the  under-estimates  complained  of,  even 
if  it  was  without  the  design  ultimately  to  defraud,  but  only  as  a  temporary  ex- 
pedient for  present  relief,  the  plaintiff  would  be  entitled  to  recover  of  them  the 
loss  which  he  sustained  by  reason  thereof. 

The  plaintiff  claimed  in  his  bill,  that  he  had  been  under-estimated  a  given 
amount,  for  the  payment  of  which  he  instituted  the  present  suit ;  by  the  report 
of  the  Master,  the  amount  not  estimated  was  found  to  be  more  than  twice  that 
amount.  Held,  that  the  plaintiff  should  be  limited  to  the  amount  claimed  in  his 
bill. 

The  report  of  a  Master  in  Chancery  upon  the  taking  of  an  account,  should 
contain  a  succinct  statement  of  all  the  points  made  by  counsel,  and  the  facts 
found  by  him  upon  each  point. 

The  testimony  given  viva  voce  before  a  Master  in  Chancery,  in  taking  an  ac- 
count, or  a  copy  of  it,  should  be  returned  to  the  court,  with  his  report. 

The  Master  should  also  state  the  account,  at  length,  and  all  the  facts  found 
by  him,  so  that  they  will  be  intelligible,  without  reference  to  the  testimony. 

In  a  contract  for  railway  construction,  where  the  parties  by  a  subsequent  con- 
tract stipulated  for  the  completing  of  the  work  by  a  day  named,  for  the  additional 
price  of  £15,000,  and  a  further  stipulation  that  the  contractor  should  pay  the 
company  £300  for  each  day's  delay  beyond  the  time  specified,  the  company  to 


§  117.       EQUITABLE  RELIEF   FROM   DECISION   OF   ENGINEERS.  425 

*2.  The  company  having  taken  the  forfeiture  under  the  con- 
tract, the  plaintiff  filed  his  bill,  insisting  that  the  engineer  had 
under-estimated  the  work  £30,000,  and  that  no  forfeiture  had 
been  incurred  by  him,  and  praying  that  the  company  might  elect 
to  permit  the  plaintiff  to  complete  the  works,  or  that  the  con- 
tract might  be  considered  at  an  end,  and  in  either  case  an  ac- 
count between  the  parties  might  be  taken. 

3.  The  Lord  Chancellor  held,  that  the  facts  alleged  do  entitle 
the  plaintiff  to  relief  in  equity.  The  plaintiff  amended  his  bill, 
*and  alleged  that  the  most  expensive  masonry  had  been  paid  for 
only  at  the  price  of  inferior  work,  and  claimed  large  sums  in 
that  respect,  and  also  alleged  fraud  against  the  company,  in  the 
contracts  and  in  the  certificates. 

4.  It  was  held,  that  the  investigations  as  to  the  sufficiency  of 
the  payments  made  could  only  be  made  in  a  court  of  equity. 

5.  That  the  evidence  in  support  of  an  allegation  of  fraud  must 
be  very  clear,  and  that  it  is  not  enough  to  show  that  the  state- 
ments of  the  company  as  to  the  nature  of  the  work,  gave  imper- 
fect information,  but  it  must  also  be  shown  that  the  contractor 
could  not  with  reasonable  diligence  have  acquired  all  necessary 
information. 

6.  The  fact  of  the  engineer  being  a  shareholder  in  the  com- 
pany is  not  enough  to  avoid  his  decision,  as  the  contractor  might 
have  ascertained  this  fact.  The  character  of  an  engineer  is  of 
more  value  to  him  than  his  interest  as  a  shareholder. 

7.  That  the  decision  of  the  engineer  as  to  the  quality  of  the 
work  is  conclusive,  but  not  as  to  the  quantity.  The  question  of 
measurement  and  calculation  will  be  entertained  and  decided  by 
a  court  of  equity. 

furnish  the  rails  and  chairs,  blocks,  &c,  to  complete  the  same,  by  the  day  specified. 
The  work  was  not  finished  for  twenty-four  days  after  the  time  specified,  and  the 
rails,  chairs,  blocks,  &c,  were  not  furnished  to  complete  it  sooner.  The  court 
held  the  covenants  independent  of  each  other,  and  the  contractor  bound  to 
deduct  the  stipulated  forfeiture,  notwithstanding  the  default  of  the  company. 
Mcintosh  v.  Midland  Counties  Railw.,  14  M.  &  W.  548  ;  s.  c.  3  Railw.  C.  730. 
The  rule  of  law  that  covenants,  which  are  not  the  entire  consideration  for  each 
other,  will  ordinarily  be  construed  as  independent,  unless  there  is  something  in 
the  transaction  which  shows  the  parties  regarded  them  as  dependent,  is  certainly 
carried  further  in  this  case  than  reason  and  justice  would  seem  to  justify.  We 
think  this  case  would  not  be  followed  in  this  country. 

*215,  216 


426  CONSTRUCTION   OF   RAILWAYS.  §  117. 

8.  That  where  the  parties  have  entered  into  new  contracts,  it 
will  be  considered  a  condonation  of  old  injuries,  unless,  at  the 
time  of  making  the  new  contract,  the  plaintiff  insisted  upon  his 
adverse  claims,  the  parties  being  at  liberty  to  proceed  at  law. 

9.  After  the  works  were  completed  by  the  company  the  court 
ordered  an  account  taken,  directing  special  inquiries  as  to  the 
amount  and  kind  of  work  done. 

10.  It  was  held  that  stipulations  in  regard  to  penalties  in 
these  contracts  are  binding  upon  the  parties,  and  no  relief 
against  them  will  be  afforded  in  equity  unless  fraud  be  shown. 
And  that,  where  it  had  been  agreed  that  a  written  contract 
should  form  part  of  an  unwritten  one,  this  will  include  stipula- 
tions as  to  forfeiture.1 

11.  In  one  case  in  Pennsylvania2  it  was  decided  that  the  esti- 
mates and  decisions  of  the  engineer  of  a  railway  company  are 
conclusive  in  disputes  with  contractors,  only  where  such  is  the 
positive  stipulation  of  the  contract ;  that  in  every  other  case  the 
correctness  of  such  estimates  are  to  be  tested  by  evidence,  and 
in  an  action  against  the  company  by  a  contractor  to  recover  a 
balance  claimed  to  be  due  for  work,  it  is  correct  to  instruct  the 
jury  to  rely  on  the  engineer's  final  estimates  unless  shown  to  be 
erroneous. 

12.  In  such  a  contract,  where  a  supplemental  contract  was 
made  by  the  company,  assuming  the  work,  and  agreeing  to  pay 
the  contractor  for  what  work  he  had  done,  and  reserving  no 
claim  for  damages,  either  on  account  of  the  suspension  of  the 
work  or  its  not  being  completed,  it  was  held  that  the  contractor 
was  entitled  to  compensation  according  to  the  stipulations  of  the 
supplemental  contract,  without  any  deductions  on  account  of 
suspension  of  or  not  completing  the  work,  and  that  the  work 
done  and  agreed  to  be  compensated  must  be  estimated  at  what 
it  was  worth,  and  the  contractor's  claim  could  not  be  restricted 
to  what  would  be  coming  to  him  under  the  final  estimates  of  the 
engineer ;  nor  could  the  company  claim  any  deductions  on  ac- 
count of  loss  incurred  in  completing  the  work.2 

13.  And  where  the  plaintiff  stipulated  to  perform  the  work  of 
shifting  the  track  of  a  railway,  under  the  direction  and  to  the 

2  Memphis  Railw.  Co.  v.  Wilcox,  48  Penn.  St.  161. 


§  118.        EQUITABLE   RELIEF   FROM   DECISION   OF   ENGINEERS. 


427 


satisfaction  of  the  city  surveyor,  whose  certificate  that  the  work 
had  been  so  performed  was  to  entitle  him  to  payment,  it  was 
held,  that  where  the  surveyor  directed  that  the  work  should  not 
be  done  beyond  a  certain  point,  that  was  a  valid  excuse  for  not 
obtaining  his  certificate  of  performance  beyond  that  point.3 

•SECTION    XIV. 
Frauds  in  Contracts  for  Construction. 


1.  Relievable  in  equity  upon  general  princi- 

ples. 

2.  Statement  of  leading  cases  upon  this  subject. 


3.  Where  no  definite  contract  closed,  no  relief 
can  be  granted. 


§  118.  1.  It  is  well  known  that  courts  of  equity  will  relieve 
against  fraud  practised  by  the  agents  of  railways,  in  building- 
contracts,  the  same  as  in  other  cases  of  fraud.  But  the  impor- 
tance and  peculiar  nature  of  these  contracts  will  justify  a  brief 
note  of  the  cases  decided  upon  the  subject. 

2.  The  most  important  case  in  the  English  books  upon  this 
subject,  is  that  of  Ranger  v.  The  Great  Western  Railway,  which 
we  have  just  referred  to  upon  another  point.1     And  the  state- 

3  Devlin  v.  Second  Avenue  Railw.  Co.,  44  Barb.  81. 

1  1  Railw.  C.  1 ;  s.  c.  3  Railw.  C.  298.  On  appeal  in  the  House  of  Lords,  27 
Eng.  L.  &  Eq.  35,  41.  In  regard  to  fraud,  on  the  part  of  railway  companies,  in 
building-contracts,  the  Lord  Chancellor  said  :  "  The  first  ground  on  which  the 
appellant  rests  his  title  to  relief  is,  that  he  was  induced  to  enter  into  the  contract 
by  the  fraud  of  the  company  ;  that  the  sum  at  which  he  agreed  to  do  the  works 
was  far  below  what  he  would  have  required  had  he  known  the  real  nature  of  the 
soil  through  which  the  tunnels  were  to  be  made ;  but  on  this  point  he  had  been 
misled  by  the  fraudulent  contrivance  of  the  respondents.  The  case  made  by  the 
bill  on  this  head  is,  that  there  being  on  the  line  of  the  road  to  be  made  for  the 
railway  in  the  neighborhood  of  Bristol  three  kinds  of  stone,  sandstone,  Dunns  or 
Dunn  stone,  and  Pennant  or  Hanham  stone,  of  which  the  first  (that  is,  sandstone) 
is  comparatively  soft  and  easy  to  work,  whereas  the  other  two  kinds  (particu- 
larly the  latter)  are  hard  and  difficult  to  work,  the  company  acting  through  Mr. 
Brunei,  their  engineer,  fraudulently  contrived  to  make  the  appellant  believe  that 
the  cuttings  would  be  through  the  softer  material  (sandstone),  and  not  through 
Dunns  or  Pennant  stone,  whereas  the  fact  was,  as  they  well  knew,  that  the  line 
was  chiefly  through  the  harder  sorts  of  stone.  The  bill  represents,  that,  for  the 
purpose  of  enabling  persons  desirous  of  contracting  to  make  the  road  along  the 
line  included  in  the  contract  described  as  1  B,  to  tender  for  the  same,  it  was 

*  217 


428  CONSTRUCTION   OF   RAILWAYS.  §  118. 

mcnt  *of  that  case,  in  the  House  of  Lords,  by  the  Lord  Chan- 
cellor Cranworth,  is  a  better  commentary  than  elsewhere  exists, 

necessary  that  in  different  parts  of  that  portion  of  the  intended  line  pits  should 
be  sunk,  called  '  trial  pits,'  in  order  that  the  nature  of  the  strata  might  be  pre- 
viously known  ;  and  accordingly  that  the  respondents  did  sink  ten  such  pits,  but 
that  eight  of  them  were  only  sunk  to  the  depth  of  a  few  feet,  and  were,  therefore, 
of  little  or  no  use  in  showing  what  would  be  the  nature  of  the  soil  at  the  level  of 
the  line  of  the  railway,  which  was  at  a  very  considerable  depth  below  the  surface  ; 
and  the  other  two  were  sunk  respectively  to  depths  of  78  and  55  feet  only,  at 
points  where  the  intended  line  of  road  was  in  one  case  112  feet  and  in  the  other 
97  feet  below  the  surface,  so  that  these  two  pits  did  not  reach  the  level  of  the 
railway,  in  one  case  by  34  feet,  and  in  the  other  by  42  feet.  The  bill  further 
alleges  that  the  soil  dug  out  of  all  of  the  said  pits  was  laid  on  the  surface  near  the 
mouth,  and  showed  apparently  a  substratum  of  sandstone,  the  workmen  employed 
to  sink  the  pits  having  by  directions  from  the  company  ceased  to  dig  when  they 
reached  the  hard  stone,  except  that  out  of  the  bottom  of  one  of  the  deep  pits  some 
Dunn  stone  was  taken,  but  which  had  crumbled  away  when  exposed  to  the  air. 

"  The  bill  then  goes  on  to  charge,  in  substance,  that  the  company,  with  knowl- 
edge that  the  cuttings  would  have  to  be  made  through  the  harder  sorts  of  stone, 
caused  notice  to  be  given  by  advertisement,  that  they  were  ready  to  receive 
tenders  according  to  certain  printed  forms  circulated  for  the  purpose,  and  the 
nature  of  the  works  to  be  done  was  to  be  ascertained  from  a  specification  deposited 
in  their  office  at  Bristol.  The  specification  described  the  works  for  which  the 
tender  was  to  be  made.  The  printed  form  of  tender  contained  an  undertaking 
by  the  party  tendering,  not  only  that  he  would  do  the  contract  works  at  a  speci- 
fied sum,  but  also  that  he  would  do  any  extra  works,  and  make  any  alterations  in 
or  additions  to  the  original  works  which  might  be  deemed  expedient  in  the  course 
of  their  progress,  on  being  paid  for  the  same  according  to  certain  rates  set  out  in 
a  schedule  of  prices  annexed  to  the  tender.  The  different  heads  under  which 
charges  were  to  be  made  by  the  contractor,  in  respect  of  such  extra  or  altered 
works  were  all  printed  as  part  of  the  form  of  tender,  and  the  party  tendering  was 
to  write  against  each  such  head  the  price  at  which  he  would  agree  to  be  bound 
to  do  the  same  works  of  the  nature  there  referred  to.  Amongst  the  works  so  to 
be  done  was  the  excavating  clay,  shell,  and  sandstone,  but  there  was  no  mention 
in  the  schedule  of  any  other  stone.  Neither  Dunn  stone  nor  Pennant  are  referred 
to  by  name  ;  and  the  suggestion  of  the  bill  is,  that  the  omission  of  any  mention 
of  Dunn  or  Pennant  stone  was  a  contrivance,  or  part  of  a  contrivance,  for  the 
purpose  of  leading  the  persons  tendering,  to  suppose  that  they  might  make  their 
calculations  on  the  footing  of  there  being  no  hard  stone  to  be  cut  through,  —  a 
supposition  which  would  be  confirmed  by  the  trial  pits,  out  of  which  no  hard  stone 
had  been  dug,  except  the  small  portion  of  Dunn  stone  from  one  of  the  pits,  which, 
as  I  have  already  stated,  crumbled  away  when  exposed  to  the  air. 

"  The  appellant  was  resident  in  London,  and  in  order  to  enable  him  to  make 
^iis  tender,  he  sent  down  to  Bristol  an  agent,  Thomas  Lloyd,  whom  he  represents 
as  a  competent  judge  in  such  matters,  to  examine  the  line  of  the  proposed  works, 
*  218 


§  118.        EQUITABLE   RELIEF   FROM   DECISION   OF  ENGINEERS.  429 

upon  this  *  subject.  The  general  subject  of  fraud  in  railway- 
companies,  in  *  regard  to  building  contracts,  is  somewhat  con- 
sidered in  a  late  case  in  the  Supreme  Court  of  Vermont.2 

so  as  to  enable  him  to  form  a  correct  judgment  as  to  what  would  be  a  fair  amount 
to  be  tendered.  The  bill  states  that  Lloyd  accordingly  proceeded  to  Bristol  in 
the  month  of  March,  1836,  surveyed  the  line  and  inspected  the  trial  pits,  and 
that,  reasonably  supposing  the  two  principal  pits  to  have  been  sunk  to  the  level, 
and  not  finding  amongst  the  excavated  material  accumulated  on  the  surface  any 
thing  but  soft  or  loose  stone  —  no  Pennant  or  Hanham  stone  —  he  concluded  that 
there  would  be  no  cutting  through  hard  stone  ;  and  the  sum  tendered  was  calcu- 
lated on  that  basis.  It  was,  according  to  the  bill,  impossible  for  Lloyd  to  get 
down  to  or  near  the  bottom  of  the  two  principal  trial  pits,  in  consequence  of  their 
being  nearly  filled  up  with  rubbish  and  water  before  he  examined  them.  The 
appellant,  therefore,  contends  that  he  was  imposed  upon  as  to  the  nature  of  the 
work  he  had  to  perform,  and  so  agreed  to  do  it  on  terms  to  which,  but  for  the  de- 
ception practised  upon  him,  he  would  not  have  consented.  The  question  on  this 
part  of  the  case  is  one  of  fact.  Is  it  established  that  any  imposition  was  practised 
on  the  appellant  to  induce  him  to  enter  into  the  contract  ?  For  if  there  was,  he 
was  clearly  entitled  to  relief,  —  whether  precisely  that  which  he  asks  for  is  another 
question.  Strictly  speaking,  a  corporation  cannot  of  itself  be  guilty  of  fraud  ;  but 
where  a  corporation  is  formed  for  the  purpose  of  carrying  on  a  trading  or  other 
speculation  for  profit,  such  as  forming  a  railway,  these  objects  can  only  be  accom- 
plished through  the  agency  of  individuals  ;  and  there  can  be  no  doubt  that  if  the 
agents  employed  conduct  themselves  fraudulently,  so  that,  if  they  had  been  acting 
for  private  employers,  the  persons  for  whom  they  were  acting  would  have  been 
affected  by  their  fraud,  the  same  principles  must  prevail  where  the  principal 
under  whom  the  agent  acts  is  a  corporation.  The  question,  therefore,  on  this 
part  of  the  case  is,  whether  the  directors,  or  the  engineers,  or  agents,  whom  they 
employed,  were  guilty  of  the  fraudulent  misrepresentations  alleged  by  the  bill. 
I  am  clearly  of  opinion  that  no  such  case  is  made  out.  [His  lordship  here  stated 
the  nature  of  the  evidence  on  this  point,  and  continued]  :  — 

"  Two  engineers,  Mr.  Frere  and  Mr.  Babbage,  both  say  that  the  appellant  had 
ample  opportunity,  by  means  of  the  trial  pits  and  cuttings,  of  ascertaining  the 
nature  of  the  soil  and  strata ;  and  the  circumstances  of  the  case  satisfy  me  that 
this  must  be  true.  The  work  to  be  done  was  of  a  laborious,  difficult,  and  expen- 
sive character.  The  notices  calling  for  tenders  had  been  circulated  for  many 
weeks,  and  even  months,  and  would  naturally  excite  the  attention  of  contractors 
of  eminence,  who  would  be  drawn  to  the  spot.  I  cannot  attribute  to  the  company 
the  fraudulent  intention  imputed  to  them  —  an  intention  as  absurd  as  it  would 
have  been  fraudulent  —  of  meaning  to  mislead  those  who  should  apply  to  make 
tenders  for  the  work,  when  they  must  have  felt  that  the  success  of  such  a  fraud 
must  entirely  depend  on  the  very  improbable  chance,  that  those  who  should  be 
attracted  by  the  notices  would  omit  to  make  inquiry  into  the  nature  of  the  soil 

*  Herrick  v.  The  Vermont  Central  Railw.,  27  Vt.  K.  673. 

*  219,  220 


430  CONSTRUCTION   OF  RAILWAYS.  §  118. 

*  3.    But  it  is  clear  that  where  no  binding  and  complete  con- 
tract has  bfecn  entered  into  by  the  company,  although  the  ten- 

they  would  have  to  excavate.  The  work  was  not  one  of  a  trifling  nature  ;  one  of 
the  persons  who  made  a  tender  demanded  above  £100,000.  The  tenders  were, 
in  the  first  instance,  to  be  made  before  the  1st  March,  1836 ;  and  until  nearly  a 
fortnight  after  that  date  the  two  principal  trial  pits  had  been  open,  and  free  from 
water,  so  that  there  was  nothing  to  prevent  any  contractor  from  himself  ascer- 
taining to  what  depth  it  had  been  cut,  and  what  was  the  soil  at  the  bottom ;  and 
though  by  the  12th  March  a  great  deal  of  water  had  entered,  and  so  partially 
choked  the  two  principal  pits,  yet  Mr.  Frere  says  the  company  and  their  engi- 
neers were  always  ready  to  facilitate  the  appellant's  investigation  as  to  the  nature 
of  the  soil  and  strata. 

"  The  appellant,  in  his  bill,  assumes  that  sandstone  and  Pennant  stone  are  two 
different  kinds  of  stone,  but  this  is  not  the  conclusion  at  which,  on  the  evidence, 
I  arrive.  '  Pennant  stone,'  says  Mr.  Brunei,  '  is  a  species  of  sandstone,  and  the 
only  species  in  the  neighborhood  of  Bristol  of  suffi  ient  hardness  to  be  used  for 
bridges,  or  other  strong  masonry.'  And  Mr.  Frere  says  that  it  is  extensively 
used  in  Bristol,  and  is  the  hardest  sort  of  sandstone  found  in  that  neighborhood, 
except  the  Brandon  Hill  stone.  Dunn  stone,  according  to  the  same  witness,  is 
merely  a  local  term  for  a  particular  variety  of  shale,  and  is  frequently  found  in 
cuttings  along  with  sandstone.  This  explanation  fully  justifies  the  language  of 
the  tenders,  without  supposing  that  the  materials  to  be  excavated  and  removed 
were  there  mentioned  by  the  company  for  any  purpose  of  deception.  The  soil 
to  be  removed  was  sufficiently  designated  as  consisting  of  clay,  shale,  and  sand- 
stone, the  latter  term  comprehending  all  sandstone,  hard  as  well  as  soft ;  that  is, 
Pennant  or  Hanham  stone  (which  is  in  truth  only  Pennant  stone  found  at  Han- 
ham),  as  well  as  ordinary  sandstone.  In  the  contract  2  B,  the  expression  occurs, 
'  compact  gray  sandstone,  commonly  called  Hanham  stone.'  It  was  for  the  appel- 
lant, before  he  made  a  tender,  to  satisfy  himself  as  to  the  probable  hardness  of  the 
sandstone  to  be  removed,  which,  after  all,  could  never  be  ascertained  beforehand 
with  perfect  certainty.  By  examining  the  trial  pits  and  cuttings,  and  making  in- 
quiries of  the  engineers,  he  might  have  ascertained  the  depth  to  which  the  pits 
had  been  sunk,  and  the  nature  of  the  soil  through  which  they  had  penetrated, 
and  at  which  they  had  arrived.  The  cuttings,  according  to  the  evidence  of  Mr. 
Frere,  exhibited  sandstone,  Pennant,  and  Dunn  stone ;  and  the  old  quarry  in 
Fox's  Wood  showed  Pennant. 

"  In  these  circumstances,  I  think  it  is  impossible  to  believe  that  there  was  any- 
thinw  like  contrivance  to  mislead  the  appellant  or  any  other  contractor;  and  it  is 
clear  that  the  appellant,  if  there  was  no  fraud,  was  bound  to  satisfy  himself  on  the 
subject ;  for  the  specification  of  the  proposed  works,  submitted  to  him  before  the 
tender  was  made,  expressly  stipulates  that  the  contractor  must  satisfy  himself  of 
the  nature  of  the  soil,  and  of  all  matters  which  can  in  any  way  influence  his  con- 
tract. This,  though  of  course  it  would  not  absolve  the  company  from  the  conse- 
quences of  any  fraudulent  contrivances  to  mislead,  yet  certainly,  in  the  absence 
of  fraud,  threw  on  the  appellant  the  obligation  of  judging  for  himself.  I  must 
*221 


§  118.  FRAUDS   IN   CONTRACTS   FOR   CONSTRUCTION.  431 

ders  made  by  a  contractor  have  been  accepted  by  their  engineer, 
authorized  to  act  on  their  behalf,  and  the  contractor  has  incurred 
expense  upon  the  faith  of  having  the  contract,  in  preparation  to 
fulfil  it,  there  being  certain  alternatives  in  the  tender,  which  had 
not  been  decided  upon,  and  the  whole  thing  being  given  up  and 
no  specific  contract  made  under  the  seal  of  the  company,  that 
equity  can  grant  no  relief.3  For  if  there  was  no  contract  equity 
could  not  create  one,  and  if  there  was  a  valid  contract  the  rem- 
edy at  law  is  adequate. 

further  add,  that  I  cannot  believe  the  appellant  to  have  been  really  mistaken  as 
to  the  nature  of  the  soil,  except,  possibly,  that  the  proportion  of  hard  stone  was 
greater  than  he  had  imagined  he  should  find.  I  come  to  this  conclusion  from  the 
fact,  that  the  specification,  which  was  submitted  to  him  before  he  made  the  tender, 
provides  for  the  construction  of  the  Avon  bridge,  and  other  masonry,  bv  means 
of  the  stone  to  be  obtained  from  the  cuttings.  Now,  Mr.  Brunei  says  that  Pen- 
nant is  the  only  sandstone  in  the  neighborhood  of  Bristol  of  sufficient  hardness 
to  be  used  for  masonry.  The  appellant  either  did  know  or  might  have  known 
this  when  he  made  his  tender,  and  it  is  surely  impossible  for  him,  in  the  face  of 
such  a  clause  in  the  specification,  to  say  that  he  did  not  know  there  would  be  any 
beds  of  Pennant  stone  —  that  is,  of  stone  capable  of  being  used  for  masonry  —  to 
be  excavated  or  removed.  It  is  not  unworthy  of  observation,  that  Mr.  Stanton, 
one  of  the  persons  who  made  a  tender,  in  his  schedule  of  prices  as  to  the  sum  which 
he  would  require  for  working  sandstone,  obviously  points  to  the  difference  which 
might  exist  in  the  expense  of  removing  sandstone  of  different  qualities ;  and  he 
did  not,  like  the  appellant  and  the  other  persons  who  made  tenders,  offer  one 
fixed  uniform  sum  for  sandstone  of  every  quality,  but  he  required  for  moving  &c. 
sandstone  from  open  cuttings,  Is.  Ad.  to  2s.  2d.,  and  from  tunnels,  2s.  dd.  to  4s. 
6d. ;  from  Avhich,  I  think,  it  may  be  fairly  inferred  that  he  understood  the  words 
'  sandstone '  used  in  the  schedule  to  include  stone  of  different  degrees  of  hard- 
ness; some  more  expensive  to  work,  some  less  so.  To  all  these  considerations 
must  be  added,  that  the  appellant  did  not,  so  far  as  there  is  any  evidence  on  the 
subject,  make  any  remonstrance  as  to  the  supposed  deception  or  mistake  during 
the  progress  of  the  works,  nor  until  after  the  relation  between  the  parties  had 
been  entirely  determined." 
8  Jackson  v.  The  North  Wales  Railw.,  6  Railw.  C.  112. 


432 


CONSTRUCTION   OF   RAILWAYS. 


§119. 


SECTION    XV. 


Engineer'' s  Estimate  wanting  throvgh  Fault  of  Company, 


1 .  In  such  case  contractor  may  maintain  bill 

in  equity. 

2.  Grounds  of  equitable  interference. 

3.  After  company  terminate  contract,   con- 

tractor will  be  enjoined  from  interference. 
And  same  rule  sometimes  extends  to  com- 
pany. 

4.  Stipulation  requiring  engineer's  estimate, 

not  void. 

5.  Not  the  same  as  an  agreement,  that  all  dis- 

putes shall  be  decided  by  arbitration. 


6.  Engineer's  estimate  proper  condition  piece- 

dent. 

7.  Same  as  sale  of  goods,  at  the  valuation  of 

third  party. 

8.  The  result  of  all  the  English  cases  seems 

to  be,  that  only  the  question  of  damages 
properly  referable  to  the  engineer. 

9.  The  rule  in  this  respect  different,  in  this 

country. 


§  119.  1.  Where,  by  the  terms  of  a  railway  construction  con- 
tract, executed  under  the  seals  of  the  parties,  the  work  is  to  be 
paid  for,  from  time  to  time,  upon  the  estimate  and  approval  of 
the  company's  principal  engineer,  and  the  amount  and  quality 
of  the  work  finally  to  be  determined,  in  the  same  mode,  no  ac- 
tion, either  at  law  or  in  equity,'  can  be  maintained  until  such 
estimate  and  approval  is  obtained,  unless  it  is  prevented  by  the 
fault  of  the  company.  But  where  no  such  engineer  is  furnished 
by  the  company,  or  where  through  their  connivance  he  neglects 
to  act,  the  *  contractor  is  not  without  remedy,  in  equity.1  Lord 
Chancellor  Cottenham,  in  affirming  this  decision,2  says:  — 

2.  "  It  is  true  that  the  specification  and  contract  constitute  a 
relationship  between  the  plaintiffs  and  the  defendants,  which,  if 
correctly  acted  upon,  would  have  given  to  the  plaintiffs  a  legal 
right,  and  a  legal  right  only,  to  the  benefits  they  claimed  by  this 
bill.  But  if  the  facts  stated  m  the  bill  are  such  as,  if  true,  de- 
prive the  plaintiffs  of  the  means  of  enforcing,  such  legal  rights, 
and  if  those  facts  have  arisen  from  the  conduct  of  the  defend- 
ants, or  of  their  agent  so  recognized  by  the  specification  and 
contract,  and  now  used  for  the  fraudulent  purpose  of  defeating 

1  Mcintosh  v.  The  Great  Western  Railw.,  2  De  G.  &  S.  758.  This  is  the 
decision  of  the  Vice-Chancellor,  which  came  before  the  Lord  Chancellor,  as 
mentioned  in  note  2. 

1  Mcintosh  v.  The  Great  Western  Railw.,  2  Hall  &  T.  t250 ;  s.  c.  2  Mac.  & 
G.  74. 

*222 


§119.  ENGINEER'S   ESTIMATES.  433 

the  plaintiff's  claim  altogether,  the  defendants  cannot  resist  the 
plaintiff's  claim  in  equity  upon  the  ground  that  their  remedy  is 
only  at  law  ;  nor  is  it  any  answer  to  show  that,  if  the  plaintiffs 
cannot  get  at  law  what  they  contracted  for,  they  may  obtain 
compensation  in  damages.  It  is  no  answer  to  a  bill  for  specific 
performance  that  the  plaintiff  may  bring  an  action  for  damages 
for  a  breach  of  the  contract,  or  in  a  proper  case  of  a  bill  for  dis- 
covery of  some  specific  chattels  that  damages  may  be  recovered 
in  trover,  —  the  language  of  pleading  is  not  that  the  plaintiff  has 
no  remedy,  but  no  adequate  remedy  save  in  a  court  of  equity. 
It  is  therefore  no  answer  in  the  present  case  for  the  defendants 
to  urge,  that  if  they  or  their  agent  have  been  neglectful  of  what 
they  undertook  to  do,  by  which  the  plaintiffs  have  suffered,  they 
may  be  liable  in  damage  to  the  plaintiffs.  They  contracted  for 
a  specific  thing,  and  are  not  bound  to  take  that,  or  something  in 
lieu  of  it,  if  such  other  thing  be  not  what  this  court  considers  as 
a  fair  equivalent.  I  do  not  therefore  consider  that  any  answer 
is  given  to  the  plaintiffs'  right  to  file  a  bill  in  this  court  by  show- 
ing that  the  ground  upon  which  they  seek  their  right  so  to  do, 
namely,  the  being  barred  of  their  legal  remedy  by  the  conduct 
of  the  defendants,  may  subject  them  to  damages  at  law." 

3.  And  where  disputes  arose  between  the  contractor  and  the 
company,  each  charging  default  upon  the  other's  part,  and  claim- 
ing the  right  to  occupy  the  works,  and  the  workmen  of  both 
coming  in  collision,  upon  the  line  of  the  road,  and  the  comple- 
tion and  opening  of  the  road  being  delayed  in  consequence,  the 
court,  on  the  application  of  the  company,  restrained  the  con- 
tractor from  *  continuing  on  the  line  or  interfering  with  the 
operations  of  the  company,  but  directed  an  account  of  what  was 
due  the  contractor,  without  regard  to  the  former  certificates  of 
the  company's  engineer,  and  an  issue  to  try  whether  the  com- 
pany were  justified  in  removing  the  contractor,  reserving  all 
claims  for  loss  and  compensation  till  the  final  hearing.3 

And  in  a  very  recent  case,4  by  the  terms  of  the  contract  it  was 
provided,  that  if  the  contractor  made  default  the  company  might 
themselves  complete  the  line,  and  that  the  plant,  &c.  upon  the 

8  East  Lancashire  Railw.  v.  Hattersley,  8  Hare,  72. 

4  Ganett  v.  Salisbury  &  Dorset  Junction  Railw.,  12  Jur.,  N.  S.  495. 

VOL.  I.  28  *223 


434  CONSTRUCTION   OF   RAILWAYS.  §  119. 

line  belonging  to  the  contractor  should  become  the  property  of 
the  company,  and  be  set  off  against  the  debts,  if  any,  due  from 
him  to  the  company,  and  that  the  contractor  should  not  hinder 
the  company  from  using  the  same.  Default  having  been  made 
by  the  contractor,  the  company  completed  the  line  and  were  pro- 
ceeding to  remove  the  plant,  &c.  An  arbitration  was  pending 
to  decide  the  question  of  amount  between  the  contractor  and  the 
company.  It  was  held  that  the  company  must  be  enjoined  from 
removing  the  plant  before  award  given. 

Lord  Romilly,  M.  R.,  here  suggests  that  the  company  have  no 
right  to  take  the  plant  until  it  appears  that  the  contractor  is  in- 
debted to  them  ;  but  we  should  have  said  that  under  such  a  con- 
tract the  fair  construction  is  that  the  company  may  take  and  use 
the  plant  in  completing  the  line,  making  themselves  debtor  to 
the  contractor  for  the  same.  The  purpose  of  such  a  stipulation 
presumptively  is,  that  the  work  may  not  be  interrupted  by  the 
change  of  hands  from  the  contractor  to  the  company.  But  after 
the  road  is  completed,  so  far  as  the  contract  extended,  and  the 
company  had  made  no  use  of  the  plant,  the  view  suggested  by 
his  lordship  seems  entirely  just  and  reasonable. 

4.  The  question  of  the  right  to  recover  at  all  at  law,  without 
procuring  the  engineer's  estimate,  where  that  is  made  a  condi- 
tion precedent  in  the  contract,  has  been  of  late  considerably  dis- 
cussed in  the  English  courts,  and  especially  in  the  important 
case  before  the  House  of  Lords,  in  July,  1856 ; 5  and  the  result 
arrived  at  seems  to  be,  that  such  a  clause  in  a  contract,  in  regard 
to  the  basis  of  recovery,  is  not  equivalent  to  a  stipulation  that 
no  action  shall  be  brought,  or  that  the  case  shall  not  come  before 
the  courts  of  law  or  equity,  which  has  long  since  been  deter- 
mined to  be  repugnant  and  void.6 

5.  The  distinction  is  somewhat  refined,  and  difficult  of  exact 
definition,  but  it  seems  to  us  not  altogether  without  foundation. 
A  stipulation,  that  no  action  shall  ever  be  brought  upon  a  con- 
tract, or,  what  is  equivalent,  that  all  disputes  under  it  shall  be 
referred  to  arbitration,  is  a  repugnancy,  which  if  carried  out  lit- 
erally must  render  the  contract  itself,  as  a  mode  of  legal  redress, 

s  Scott  v.  Avery,  36  Eng.  L.  &  Eq.  1. 

*  Thompson  v.  Charnock,  8  Term,  139.     See  also  Tattersall  v.  Groote,  2  B. 
&  P.  131. 


§  119.  ENGINEER'S  ESTIMATES.  435 

wholly  idle.     And  it  is  only  in  this  view  that  contracts  are  to  be 
considered  by  the  courts. 

6.  But  a  stipulation  that  the  liability  under  a  contract  or 
covenant  shall  not  accrue,  except  upon  the  basis  of  certain  pre- 
viously ascertained  facts,  where  the  contract  contains  provisions 
for  ascertaining  them,  by  the  action  of  either  party,  without  the 
concurrence  of  the  other,  is  no  more  than  a  limitation  upon  the 
right  of  action,  as  that  no  action  shall  be  brought  until  after  one 
year,  or  unless  commenced  within  six  months,7  which  have  been 
held  valid.  And  even  where  the  concurrence  of  both  parties  is 
requisite  and  the  performance  of  the  condition  fails  through  the 
refusal  of  one,  it  probably  is  the  same  as  to  the  other  as  if  per- 
formed. 

7.  Hence  a  contract  to  purchase  goods  at  the  valuation  of  N. 
and  M.,  cannot  be  made  the  foundation  of  an  action,  without 
obtaining  the  valuation  stipulated,  or  showing  that  the  other 
party  hindered  it.8  And  in  some  cases  it  has  been  held,  that  if 
the  obtaining  of  the  estimate  is  withheld  or  defeated  by  the 
fraud  of  *  the  other  party,  that  no  action  at  law  will  lie,  the  only 
remedy  being  by  a  special  action  for  the  fraud,  or  in  equity,  per- 
haps.9 

8.  This  subject  is  very  elaborately  discussed  by  the  judges, 
before  the  House  of  Lords,  in  the  case  of  Scott  v.  Avery,5  and  it 
is  remarkable  how  wide  a  difference  of  opinion  was  found  to 
exist,  upon  a  question  which  might  seem  at  first  blush  so  simple. 
Of  the  nine  judges  who  gave  formal  opinions,  three  were  op- 

7  Wilson  v.  iEtna  Ins.  Co.,  27  Vt.  T&.  99,  and  cases  there  cited. 

8  Thurnell  v.  Balbirnie,  2  M.  &  W.  786 ;  Milnes  v.  Gery,  14  Vesey,  400. 

'  Milner  v.  Field,  5  Exch.  829.  But  in  a  later  case  in  the  same  court  it  is 
said  that  the  award  must  be  obtained,  or  it  must  be  shown  that  it  is  no  longer 
practicable  to  obtain  it.  Brown  v.  Overbury,  34  Eng.  L.  &  Eq.  610.  This  rule, 
with  the  qualification  that  the  defendant  by  his  own  act  or  refusal  had  rendered 
the  performance  of  the  condition  impracticable,  is  now,  in  this  country  certainly, 
held  such  an  excuse  as  will  enable  the  party  to  sue  in  a  court  of  law.  United 
States  v.  Robeson,  9  Peters,  Sup.  Ct.  319,  326.  And  in  a  very  late  case  in 
Pennsylvania,  Snodgrass  v.  Gavit,  28  Penn.  St.  221,  Mr.  Justice  Woodward 
assumes  it  as  the  unquestionable  rule,  in  that  state,  that  "  where  parties  stipulate 
that  disputes,  whether  actual  or  prospective,  shall  be  submitted  to  the  arbitra- 
ment of  a  particular  individual,  or  tribunal,  they  are  bound  by  their  contract, 
and  cannot  seek  redress  elsewhere." 

♦  224 


436  CONSTRUCTION   OF  RAILWAYS.  §  119. 

posed  to  allowing  any  force  whatever  to  such  a  stipulation. 
And  of  the  other  six,  four  held  that  only  the  question  of  dam- 
ages can  properly  be  made  to  depend,  as  a  condition  precedent, 
upon  the  award  of  an  arbitrator,  while  two  held  that  the  award 
may  be  made  to  include  all  matters  of  dispute  growing  out  of 
the  contract,  which  it  seems  to  us  must  be  regarded  as  equiva- 
lent to  saying  that  no  action  at  law  or  in  equity  shall  be  brought 
to  determine  any  controversy  growing  out  of  the  contract,  which 
all  the  judges  agree  is  a  void  stipulation.  We  therefore  feel 
compelled  to  adopt  the  view  that  upon  principle,  and  the  fair 
balance  of  authority,  such  a  stipulation,  in  regard  to  estimating 
labor  or  damages,  under  a  contract  for  construction,  is  valid, 
and  may  be  treated  as  a  condition  precedent,  but  that  beyond 
that,  the  present  inclination  of  the  English  courts  is  to  hold  that 
it  is  repugnant  to  sound  policy,  and  subversive  of  the  legal  obli- 
gation of  the  contract,  as  being  equivalent  to  a  stipulation  that 
no  action  at  law  shall  be  brought  upon  the  contract,  but  only 
upon  the  award,  if  not  paid. 

9.  But  the  balance  of  authority  in  this  country  seems  to  be 
in  favor  of  allowing  such  a  condition  precedent,  in  this  class  of 
contracts,  to  extend  to  the  quality  of  the  work,  as  well  as  the 
quantity,  and  to  the  question,  whether  the  work  is  progressing 
with  sufficient  rapidity,  and  whether  the  company,  on  that  ac- 
count, are  justified  in  putting  an  end  to  the  contract.9  It  seems 
reasonable  to  us,  on  many  grounds,  that  contracts  of  this  mag- 
nitude and  character  should  receive  a  somewhat  different  inter- 
pretation in  this  respect  from  that  which  is  applied  to  the  ordi- 
nary commercial  transactions  of  the  country,  as  has  been  held 
in  regard  to  pecuniary  penalties.10  *  We  should  not  therefore 
feel  justified  in  intimating  any  desire  to  see  the  American  cases 
on  this  subject  qualified. 

10  Ante,§  116,  117. 
*225 


§120. 


CONTRACTS   FOR   MATERIALS  AND   MACHINERY. 


437 


SECTION    XVI. 


Contracts  for  Materials  and  Machinery. 


1.  Manufacturer  not  liable  for  latent  defect  in 

materials. 

2.  Contract  for  railway  sleepers,  terms  stated. 

3.  Construction  of  such  contract. 


4.  Party  may  waive  stipulation  in  contract, 

by  acquiescence. 

5.  Company  liable  for  materials,  accepted  and 

used. 


§  120.  1.  In  a  contract  for  fire  engines,  it  was  stipulated  that 
the  engines  and  tender  should  be  subject  to  the  performance  of 
one  thousand  miles,  with  proper  loads,  the  manufacturers  to  be 
liable  for  any  breakage  which  may  occur  through  defect  of  ma- 
terials or  workmanship,  but  not  where  it  occurs  from  collision, 
neglect,  or  mismanagement  of  the  company's  servants,  or  any 
other  cause,  except  the  two  first-named.  The  trial  to  take  place 
within  one  month  from  the  day  on  which  any  engine  is  reported 
ready  to  start,  in  default  of  which  the  manufacturers  to  be  re- 
leased from  all  responsibility.  It  was  specially  agreed  the  fire- 
boxes should  be  of  copper,  7-10ths  of  an  inch  thick.  One  of  the 
engines,  so  supplied,  performed  the  thousand  miles  according  to 
the  contract,  but  some  months  after  the  fire-box  burst,  when  it 
was  discovered  that  the  copper  was  reduced  to  3-16ths  of  an 
inch  in  thickness,  it  being  conceded  it  was  originally  of  the 
thickness  required  by  the  contract.  In  an  action  for  the  price 
of  the  engine,  which  by  the  contract  was  to  be  paid  upon  the 
satisfactory  completion  of  the  trial,  it  was  held  the  defendants 
could  not  give  evidence  of  such  defect  in  the  copper,  no  fraud 
being  alleged,  and  that,  by  the  terms  of  the  contract,  the  three 
months'  trial  having  been  satisfactory,  released  the  manufactu- 
rers from  all  responsibility  in  respect  of  bad  materials  and  work- 
manship.1 

2.  In  a  contract  for  railway  sleepers,2  it  was  stipulated  that 
the  plaintiff  below  should  supply  the  defendant  below  with 
350,000  sleepers,  the  contract  before  having  recited  that  the  de- 

1  Sharp  v.  The  Great  Western  Railw.,  2  Railw.  C  722 ;  s.  c.  9  M.  &.  W.  7. 
4  The  Great  Northern  Railw.  v.  Harrison,  14  Eng.  L.  &  Eq.  189,  in  the  Ex- 
chequer Chamber,  from  the  C.  P. ;  s.  c.  8  Eng.  L.  &.  Eq.  469. 


438  CONSTRUCTION   OF   RAILWAYS.  §  120. 

fendants  were  desirous  of  being  supplied  with  that  number  of 
railway  *  sleepers.  The  contract  specified  that  the  plaintiffs 
were  willing  to  supply  them  according  to  a  specification  and 
tender,  which  stated  that  the  number  of  sleepers  required  was 
350,000,  that  one  half  would  have  to  be  delivered  in  1847,  and 
the  remainder  by  midsummer,  1848 ;  and  the  contract  also  con- 
tained a  covenant  to  supply  the  sleepers  within  the  time  speci- 
fied, "  as,  and  when,  and  in  such  quantities,  and  in  such  man- 
ner," as  the  engineer  of  the  company  by  orders  in  writing, 
"  from  time  to  time  or  at  any  time,  within  the  time  limited  by 
the  specification,  should  require."  The  deed  also  contained  a 
provision,  that  the  engineer  might  vary  the  time  of  delivery,  that 
the  company  should  retain  in  their  hands  <£  2,000  as  security 
for  the  performance  of  the  contract,  and  should  pay  it  over 
within  two  months  after  the  sleepers  had  been  delivered,  and 
that  the  contract  might  be  determined  upon  the  default  or  bank- 
ruptcy of  the  plaintiffs. 

3.  It  was  held  that  there  was  an  implied  covenant  on  the  part 
of  the  company  to  take  the  whole  number  of  350,000  sleepers. 
That  an  order  by  the  engineer  was  a  condition  precedent  to  any 
delivery  of  the  sleepers  by  the  plaintiffs ;  That  the  company 
were  bound  to  cause  such  order  to  be  given  within  the  time 
limited  by  the  specification ;  That  although  the  engineer  had 
power  to  alter  the  time  for  the  delivery  of  the  sleepers,  such 
power  was  to  be  exercised  within  the  period  limited  by  the 
specification  ;  That  the  engineer,  as  to  matters  in  which  he  had 
a  discretion,  e.  g.  as  to  varying  the  time  of  delivery  of  the  sleep- 
ers, stood  in  the  position  of  arbitrator  between  'the  parties,  but 
as  to  giving  the  order  for  the  delivery  he  was  a  mere  agent  of 
the  company ;  The  only  legitimate  rule  of  construction  is  to  as- 
certain the  meaning  from  the  language  used  in  the  instrument, 
coupled  with  such  facts  as  are  admissible  in  evidence,  to  aid  its 
explanation.  —  Per  Parke,  B. 

4.  It  has  been  held,  also,  in  a  contract  with  a  railway  com- 
pany to  deliver  iron,  "  near  the  months  of  July  and  August," 
and  the  delivery  continuing  till  the  25th  of  October,  and  the 
company  not  objecting  to  receive  it,  that  they  were  bound  by  the 

*226 


§  121.  PAYMENTS  IN   STOCK   OF  THE   COMPANY.  439 

terms  of  the  contract,  one  of  which  was  that  they  were  to  give 
their  note  for  each  parcel  of  iron  as  it  was  shipped.3 

*5.  So,  too,  under  the  English  statute,4  which  provides  that 
the  directors  of  a  railway  company  may  contract  by  parol,  on 
behalf  of  the  company,  where  private  persons  may  make  a  valid 
parol  contract,  it  was  held,  where  the  agent  of  the  company 
agreed  by  parol  with  the  plaintiff  to  purchase  of  him  a  quantity 
of  railway  sleepers  upon  certain  terms,  the  sleepers  being  de- 
livered and  used  by  the  company,  that  they  were  liable.5 

SECTION    XVII. 
Contracts  to  Pay  in  the  Stock  of  the  Company. 

1.  Breach  of  such  contract  generally  entitles  \  3.   Cash  portion  overpaid,  will  only  reduce 

the  party  to  recover  the  nominal  value  of  stock  portion  dollar  for  dollar. 

stock.  n.  2.  Lawful  incumbrance  on  company' s  prop- 

2.  But  if  the  party  have  not  strictly  performed  erty,  will  not  excuse  contractor  from  ae- 

on his  part,  can  only  recover  market  value.  I  cepting  stock. 

§  121.  1.  In  many  contracts  for  construction,  the  whole  or  a 
portion  of  the  price  is  stipulated  to  be  paid  in  the  stock  of  the 
company,  as  the  work  progresses,  at  certain  stages,  or  when  it  is 
completed.  The  time,  place,  and  mode  of  payment  in  such 
cases,  will  be  the  same  ordinarily  as  in  other  contracts  for  pay- 
ment of  stock.  If  the  company  refuse  or  neglect  to  deliver  the 
stock  or  the  proper  certificates  when  it  becomes  due,  upon 
proper  request  or  opportunity,  they  are  generally  liable,  it  is 
considered,  as  in  other  cases  of  failure  to  perform  contracts,  for 
a  certain  amount  or  value,  in  collateral  articles  expressed  in 
currency.1 

3  Bailey  v.  the  Western  Vermont  Railw.,  18  Barb.  112.  It  was  also  held,  here, 
that  the  refusal  of  the  company  to  give  their  notes,  as  stipulated,  excused  the 
plaintiff  from  delivering  or  tendering  the  remainder  of  the  iron,  until  the  com- 
pany should  tender  their  notes,  and  entitled  plaintiff  to  sue  presently. 

4  8  and  9  Vict.  c.  16. 

5  Paulding  v.  London  &  North  W.  Railw.,  22  Eng.  L.  &  Eq.  560.  The  con- 
tract was  made  by  the  engineer's  clerk,  who  was  also  clerk  of  the  company,  but 
there  was  evidence  of  the  assent  of  the  committee.  Lowe  v.  London  &  North 
W.  Railw.,  14  Eng.  L.  &  Eq.  18. 

1  Moore  v.  Hudson  River  Railw.,  12  Barb.  156.  It  was  held,  in  this  case, 
that  where  a  portion  of  the  price  of  construction  was  payable  in  stock,  at  par, 

*227 


440  CONSTRUCTION   OF  RAILWAYS.  §  121. 

2.  But  it  was  held,  that  where  the  plaintiff  recovered  a  bal- 
ance due  on  equitable  grounds,  and  not  on  the  ground  of  strict 
and  full  performance  of  the  contract,  he  was  precluded  on  like 
equitable  *  grounds  from  recovering  more  for  the  stock  portion 
of  the  contract  than  its  market  value  at  the  commencement  of 
the  action.2 

within  thirty  days  after  the  completion  of  the  contract,  the  company  were  not 
bound  to  make  any  tender  of  the  stock,  as  in  case  of  contracts  for  specific 
articles.  But  that  it  was  a  payment  in  depreciated  currency,  and  no  tender 
necessary.  In  a  recent  English  case,  Re  Alexandra  Park  Co.,  12  Jur.  N.  S.  482, 
where  the  contractor  stipulated  to  accept  a  portion  of  his  pay  in  stock,  at  the 
election  of  the  company,  it  was  held  he  was  not  bound  by  such  an  election  after 
the  company  was  ordered  to  be  wound  up  as  insolvent,  as  the  shares  thereby 
become  extinguished. 

2  Barker  v.  T.  &  R.  Railw.,  27  Vt.  R.  766.  In  this  case  the  court  say :  "If 
the  defendants  have,  upon  reasonable  request,  declined  paying  the  amount  due, 
in  their  stock,  as  stipulated,  it  would  seem  but  reasonable  they  should  pay  the 
amount  in  money. 

"  1.  This  is  the  general  rule  in  regard  to  contracts  payable  in  collateral  arti- 
cles, estimated  in  currency,  and  not  delivered. 

"  2.  The  stock  of  a  corporation  is  but  a  certificate  of  such  a  sum  being  due 
the  bearer.  And  when  the  party  stipulated  to  pay  in  his  own  paper,  if  he  re- 
fuse, suit  may  be  brought  immediately,  although  the  paper  was  to  have  been  on 
time,  if  given.  But  it  was  never  supposed  the  party  could  reduce  the  recov- 
ery, by  showing  his  paper  depreciated  in  the  market.  This  would  be  virtually 
giving  the  difference  to  the  other  stockholders.  This  would  be  the  rule  which 
should  be  applied  if  defendants  are  wilfully  in  fault.  If  it  were  the  stock  of 
another  company,  no  doubt,  all  which  could  be  recovered  is  the  value  of  the 
stock  in  the  market.  Certainly,  this  is  the  general  rule  in  regard  to  stock. 
And,  perhaps,  that  rule  should  be  applied  to  the  stock  of  the  defendants,  if  it 
appears  they  have  not  wilfully  and  unreasonably  refused  to  deliver  the  stock. 
Ante,  §  38. 

"  But  the  recovery  here  is  not  allowed  upon  strictly  legal  grounds,  upon  the 
strict  and  literal  performance  of  the  contract  on  the  part  of  the  plaintiffs.  It  is 
rather  upon  equitable  grounds  that  any  recovery  and  apportionment  of  the 
contract  is  allowed  for  anything  less  than  full  performance.  By  the  terms  of 
the  contract  the  defendants  had  a  right  to  retain  the  tenth  part  reserved  until 
full  performance.  And,  although  it  has  not  been  regarded  as  a  strict  condition 
precedent  in  some  of  the  cases  (Danville  Bridge  Co.  v.  Pomeroy,  15  Penn.  St. 
151),  still  it  is  a  stipulation  in  the  contract,  for  the  full  performance  of  which 
the  defendants  had  the  right  to  insist,  and  for  doing  which  they  are  not  to  be 
themselves  regarded  as  in  fault.  The  defendants,  too,  were  justified  in  refusing 
to  pay  any  deficiency  in  the  work  at  the  time  of  the  demand ;  so  that  while  we 
excuse  the  plaintiffs  from  full  performance  of  their  contract,  as  a  strict  condi- 
*228 


§  121.  PAYMENTS  IN   STOCK   OF   THE   COMPANY.  441 

*3.    So,  too,  where  the  work  is  to  be  paid  partly  in  stock  and 
partly  in  money,  if  the  money  part  be  overpaid,  even  by  doing  a 

tion  precedent,  and  allow  them  to  recover  to  the  extent  of  what  they  had  done, 
on  the  equitable  ground  that  they  had  in  good  faith  attempted  to  fulfil  their 
undertaking,  and  supposed  they  had  done  so,  and  only  failed  by  mistake  and 
misapprehension,  which  should  not,  under  the  contract,  defeat  the  recovery  in 
toto,  but  only  subject  it  to  an  equitable  deduction  for  all  damage  sustained  by 
defendants,  it  seems  to  us  that  it  should  form  a  part  of  this  equity  to  the  defend- 
ants, not  to  be  required  to  pay  more  for  this  stock,  even  if  it  were  their  own, 
than  it  was  in  fact  worth,  or  could  have  been  made  to  benefit  the  plaintiffs. 

"  As  we  now  hold,  the  plaintiffs  were,  at  the  time  of  the  demand,  entitled  to 
recover,  upon  equitable  grounds,  a  sum  less  than  the  whole  price.  But  they 
demanded  the  whole  price,  and  the  defendants  refused.  The  demand  itself 
was  unreasonable.  Is  it  certain  a  reasonable  one  would  have  met  a  similar 
fate  ?  It  has  been  held  the  demand  must  be  reasonable,  to  render  the  refusal 
unreasonable.  Jameson  v.  Ware,  6  Vt.  R.  610.  As,  therefore,  the  refusal  of 
defendants  seems  to  have  been  not  altogether  without  good  excuse,  and  in 
allowing  an  equitable  recovery,  in  a  case  like  the  present,  one  of  the  first  re- 
quirements seems  to  be,  that  no  injustice  shall  be  thereby  visited  upon  defend- 
ants, it  would  almost  necessarily  follow  that  we  should  not  suffer  the  plaintiffs 
to  recover  more  for  the  work  really  done  by  them  than  they  could  possibly  have 
realized  if  they  had  been  paid  at  the  time,  according  to  the  contract.  And,  as 
we  set  up  a  basis  of  recovery  upon  equitable  grounds,  and  one  not  contemplated 
in  the  contract,  we  should  not  visit  the  defendants  with  a  judgment  which  will 
make  them  worse  off  than  if  they  had  been  allowed  to  pay  the  sum  found  to  be 
due  upon  this  equitable  basis,  after  it  is  declared,  according  to  the  stipulations 
of  the  original  contract.  If  this  view  is  sound  and  equitable,  and  we  see  no 
reason  to  doubt  it,  the  plaintiffs,  as  to  the  stock  portion  of  their  judgment,  are 
entitled  to  the  highest  price  the  stock  bore  after  the  suit  was  commenced,  and 
before  the  final  judgment,  or,  if  they  choose,  the  court  will  strike  out  that  por- 
tion of  the  amount  reported,  and  require  the  certificates  of  stock  still  to  be  de- 
livered ;  and  if  defendants  refuse,  on  reasonable  request,  enter  up  judgment  for 
the  full  amount."  But  if  the  contractor  perform  extra  work  he  is  entitled  to 
recover  for  that,  in  money,  upon  an  implied  promise,  notwithstanding  by  his 
contract  he  was  to  accept  part  of  his  pay  in  stock  for  all  work  done  under  the 
contract.  Childs  v.  Som.  &  Ken.  Railw.,  Cir.  Ct.  U.  S.  Maine  District,  May  1, 
1857.  20  Law  Rep.  561.  In  the  case  of  Cleveland  &  Pittsburgh  Railw.  v. 
Kelley,  5  Ohio  St.  180,  it  is  held,  that  where  one  fourth  of  the  amount  due  the 
contractors  is  to  be  taken  in  the  stock  of  the  company,  and  the  company  refuse 
to  deliver  the  stock  on  request,  they  "are  only  liable  for  the  market  value  of  the 
stock  at  the  time  it  should  have  been  delivered.  The  court  profess  to  base  their 
opinion  upon  the  ground  that  in  contracts  of  this  character  there  is  not  under- 
stood to  be  any  election  reserved  by  the  company  to  pay  either  in  their  stock, 
or  in  money,  but  that  it  is  an  absolute  undertaking  to  deliver  so  much  stock  as 
shall,  at  its  par  value,  be  equal  to  one  fourth  the  amount  due  the  contractor. 

*229 


442  CONSTRUCTION   OF  RAILWAYS.  §  121. 

portion  of  the  work,  which  the  party  reserved  the  right  to  do  in 
order  to  hasten  the  work,  it  will  only  reduce  the  stock  payment 

It  docs  not  readily  occur  to  us  how  this  relieves  the  question  from  the  apparent 
violation  of  principle,  in  allowing  the  company  to  refuse  to  give  certificates  of 
their  own  stock  which  they  have  contracted  to  do,  and  at  the  same  time  pay  less 
than  its  par  value.  It  is,  in  ordinary  cases,  equitable,  no  doubt,  and  always 
where  the  refusal  is  upon  the  ground  that  nothing  is  due  the  contractor.  Ante, 
§  121,  n.  2. 

[•  The  point  of  the  decision  is  thus  summed  up  by  Mr.  Justice  Swan.  "  For  these 
reasons  we  are  of  the  opinion  that  no  such  election  was  contemplated  by  either 
of  the  parties  when  the  contract  was  entered  into  ;  that  the  law  relating  to  trade 
notes  and  contracts  of  a  like  kind,  has  no  application  to  the  agreement  between 
these  parties ;  that  it  was  an  exchange  of  work  for  stock,  in  which  monetary 
terms  were  necessarily  used,  not  for  the  purpose  of  expressing  real  values,  but 
as  the  only  mode  of  expressing  quantities  and  proportions ;  that  the  fourth  to  be 
taken  in  stock  was  not  a  money  indebtedness,  but  a  stock  indebtedness ;  and, 
consequently,  that  the  company  could  derive  no  benefit  from  the  increased 
value  of  the  stock,  and  could  suffer  no  loss  by  its  depreciation ;  the  damages 
which  the  contractors  suffered  from  the  non-delivery  of  the  stock  being  its  mar- 
ket value." 

See  also  Boody  v.  Rut.  &  Bur.  Railw.  (Cir.  Ct.  U.  S.),  24  Vt.  R.  660.  In  this 
case  it  was  held,  that  the  defendants  having  given  their  creditors  a  mortgage  upon 
their  road,  after  the  contract  with  the  plaintiff,  did  not  excuse  him  from  accept- 
ing the  stipulated  proportion  of  the  payments  in  stock. 

Nor  can  the  contractors,  in  such  case,  refuse  to  receive  the  stock,  because  the 
legislature,  in  the  mean  time,  altered  the  charter  of  the  company,  by  which  the 
capital  stock  and  debt  of  the  company  were  increased ;  nor  because  the  com- 
pany voted  not  to  pay  interest  on  the  stock,  in  money,  as  they  had  before  done, 
it  not  appearing  that  the  value  of  the  stock  had  been  affected  by  either.  Moore 
v.  Hudson  River  Railw.,  12  Barb.  156. 

And  where  the  company,  in  settlement  with  a  contractor,  agreed  to  pay  him 
a  certain  amount,  in  stock,  or  the  bonds  of  the  company,  at  his  election,  the 
company  retaining  the  same  as  security  for  certain  liabilities  on  account  of  the 
contractor,  and  gave  the  contractor  a  certificate  of  such  stock,  with  an  agree- 
ment indorsed,  to  exchange  it  for  bonds,  at  his  election,  and  the  certificates  were 
then  returned  to  them,  as  their  indemnity ;  it  was  held,  that  the  company  were 
bound  to  deliver  the  bonds,  notwithstanding  the  treasurer  had  entered  the  shares 
in  the  books  of  the  company  as  the  property  of  the  contractor,  and  they  had  in 
consequence  been  sold  upon  execution  against  him.  Jones  v.  Portsmouth  & 
Concord  Railw.,  32  N.  H.  R.  544. 

A  contractor  who  agrees  to  take  a  portion  of  his  pay  in  the  bonds  of  the  com- 
pany, has  no  such  interest  in  any  question,  in  regard  to  their  validity,  as  will 
prevent  a  court  of  equity  from  enjoining  those  of  a  county,  which  had  been 
delivered  to  the  company  without  a  proper  compliance  with  the  conditions  of 
the  statute,  under  which  the  subscription  was  made,  the  contractor  having  had 


§122. 


TIME   AND   MODE   OF   PAYMENT. 


443 


dollar  for  dollar,  and  not  according  to  the  market  value  of  the 
stock  at  the  time.3 

♦SECTION    XVIII. 
Time  and  Mode  of  Payment. 


1.  No  time  specified,  payment  due  only  when 

work  completed. 

2.  Stock  payments   7iiusl    ordinarily   be   de- 

manded. 


3.  But  if  company  pay  monthly,  such  usage 

qualifies  contract. 

4.  Contract  to  build  wall  by  cubic  yard,  im- 

plies measurement  in  the  wall. 


§  122.  1.  Where  no  time  of  payment  is  specified  in  terms  in 
the  written  contract  between  the  parties  for  the  construction  of 
a  portion  of  a  railway,  it  was  held,  that  looking  to  the  contract 
alone  the  contractor  could  not  call  for  payment,  either  of  the 
cash  or  stock  portion  of  the  contract,  until  a  complete  perform- 
ance of  the  contract  on  his  part.1  Or,  upon  the  most  favorable 
construction,  until  some  distinct  portion  of  the  work,  for  which 
the  contract  fixed  a  specific  price,  was  accomplished.1 

2.  In  regard  to  the  stock  portion  of  the  payments,  a  special 
demand  was  necessary  before  the  contractor  can  maintain  an 
action  for  it.1 

3.  But  where  it  appeared  that  the  company  were  accustomed 
to  make  monthly  payments  to  their  contractors,  upon  the  esti- 
mates of  the  engineer,  at  the  end  of  each  month,  and  that  they 
had  so  dealt  with  the  plaintiff,  it  was  held  that  this  must  be  con- 
sidered the  rule  of  payment  under  the  contract,  established  by 
mutual  consent  and  binding  upon  the  parties.1 

4.  A  contract  to  build  "riprap"  wall  for  fifty  cents  a  cubic 
yard,  in  the  absence  of  proof  of  any  general  usage  or  uniform 
custom  which  could  control  the  mode  of  measurement,  was  held 
to  imply  payment  by  the  cubic  yard  after  the  wall  was  con- 
structed.2 

knowledge  of  the  facts  from  the  first.    Mercer  County  v.  Pittsburgh  &  Erie  Railw., 
27  Penn.  St.  389. 

3  Jones  &  Dow  v.  Chamberlain,  30  Vt.  R.  196. 

1  Boody  v.  Rut.  &  Bur.  Railw.,  24  Vt.  R.  660  (U.  S.  Cir.  Ct.). 

1  Wood  v.  Vermont  Central  Railw.,  24  Vt.  R.  608. 

*230 


444  CONSTRUCTION  OF  RAILWAYS.  §123, 123  a. 

♦SECTION    XIX. 

Remedy  on  Contracts  for  Railway  Construction. 

1.  Recovery  on  general  counts.  |  2.  Amount  and  proof  governed  by  contract. 

§  123.  1.  It  is  a  familiar  principle  of  law,  applicable  to  con- 
tracts for  the  performance  of  work  and  labor,  that  if  the  work  is 
done  so  that  nothing  more  remains  but  payment,  there  is  no 
necessity  of  declaring  specially  upon  the  contract,  but  the  recov- 
ery may  be  had  under  the  general  counts ;  and  it  will  make  no 
difference  in  this  respect  that  it  was  not  done  within  the  time 
prescribed  by  the  contract,  if  the  work  has  been  accepted  by  the 
other  party,  or  the  time  for  performance  extended  by  such  party, 
or  the  work  has  been  done  upon  some  permanent  property  of  the 
other  party,  as  in  the  case  of  building  a  railway.1 

2.  But  ordinarily  the  contract  will  govern  as  to  price  and 
other  incidents,  so  far  as  it  can  be  traced.  But  where  the  party 
for  whom  the  labor  is  performed  wilfully  hinders  and  obstructs 
the  progress  of  the  work,  it  has  been  held  he  was  liable,  as  upon 
a  quantum  meruit.1  But  in  such  case  the  party  must  prove  the 
performance  of  the  labor,  by  such  proof  as  would  be  competent 
in  an  action  on  the  special  contract,  and  cannot  treat  the  deal- 
ing as  if  it  had  been  matter  of  account  from  the  first.1 

SECTION    XX. 
3Iechanic,s  Lien. 

1.  Such  lien  cannot  exist  in  regard  to  a  rail-  I  2.   Opinion  of  Scott,  J. 
way. 

§  123  a.  1.  It  has  been  considered  that  although  a  public  rail- 
way may  come  within  the  literal  import  of  the  terms  used  in  a 
statute,  to  secure  material-men  and  laborers,  by  what  is  denom- 
inated a  mechanic's  lien  upon  "  buildings  or  other  improve- 

1  Merrill  v.  Ithaca  &  Owego  Railw.,  16  Wendell,  586 ;  s.  c.  2  Am.  Railw.  C. 
421. 

*231 


§  123  b.      REMEDIES  OF  LABORERS  AND  SUB-CONTRACTORS. 


445 


ments,"  yet  that  the  public  have  such  an  interest  in  puhlic 
works  of  this  character,  that  it  cannot  reasonably  be  presumed 
that  such  terms  were  intended  to  include  the  bridges  and  cul- 
verts upon  the  line  of  a  public  railway.1 

2.  The  language  of  Scott,  J.,  shows  the  ground  of  the  deci- 
sion. "  Although  railway  companies  in  some  respects  resemble 
private  corporations,  yet,  as  they  are  organized  for  the  public 
benefit,  the  state  takes  a  deep  interest  in  them  and  regards  them 
as  matters  of  public  concern.  The  establishment  of  this  railway 
is  regarded  as  a  public  work,  established  by  public  authority, 
intended  for  the  public  use  and  benefit."  The  learned  judge 
argues,  that  such  a  lien  to  be  effectual  must  be  liable  to  defeat 
the  object  of  the  work,  and  therefore,  and  as  the  legislature  have 
provided  a  specific  remedy  for  laborers,  it  is  not  to  be  supposed 
that  a  mechanic's  lien  also  exists  in  regard  to  the  structures  on 
the  works. 

SECTION    XXI. 

Remedies  on  behalf  of  Laborers  and  Sub-contractors. 


1.  Sub-contractors  not  bound  by  stipulations 

of  contractor. 

2.  Laborers   on  public  works  have  a  claim 

against  the  company. 


3.  But  a  sub-contractor  cannot  go  against  the 
proprietor  of  the  works,  although  laborer 
employed  by  him  may. 


§  123  6.  1.  A  sub-contractor  who  has  completed  his  work  to 
the  acceptance  of  the  engineers  appointed  to  pass  upon  its  suffi- 
ciency, is  entitled  to  recover  of  the  contractor  the  sum  retained 
upon  his  estimates,  as  security  for  the  completion  of  the  work, 
notwithstanding  any  deficiency  in  the  performance  of  the  con- 
tractor, whereby  he  is  himself  unable  to  recover  such  deficiency 
of  the  company.1 

2.  By  statute  in  many  of  the  states,  the  workmen  upon  a  rail- 
way, although  in  the  employment  of  the  contractor,  have  a  claim 
for  any  arrears  of  wages,  not  exceeding  a  certain  period,  upon 
the  company,  and  this  provision  has  been  held  to  extend  equally 

1  Dunn  v.  North  Missouri  Railw.,  24  Mo.  R.  493. 
1  Blair  v.  Corby,  29  Mo.  R.  480,  486. 


446  CONSTRUCTION   OF   RAILWAYS.  §1236. 

to  workmen  employed  by  sub-contractors.2  And  the  provisions 
of  this  statute  being  only  a  matter  of  general  police,  will  be 
equally  binding  upon  all  railway  companies,  whether  chartered 
before  or  after  the  passing  of  the  statute.2 

3.  But  the  sub-contractor  himself  cannot  pass  by  his  imme- 
diate employees  and  maintain  an  action  against  the  principal 
proprietor  of  the  work.3 

5  Grannahan  v.  Hannibal  &  St.  Joseph  Railw.  Co.,  30  Mo.  R.  546.  See  also 
McClusky  v.  Cromwell,  1.  Kern.  593;  Kent  v.  N.  Y.  Cent.  Railw.,  2  Id.  628; 
Peters  v.  St.  Louis  &  Iron  M.  Railw.  Co.,  23  Mo.  R.  107. 

3  Branin  v.  Conn.  &  Pass.  Railw.  Co.,  31  Vermont  R.  214  ;  Lake  Erie,  &c. 
Railw.  Co.  v.  Eckler,  13  Ind.  R.  67.     See  Boswell  v.  Townsend,  37  Barb.  205. 


§124. 


EXCESSIVE   TOLLS,   FARE,   AND   FREIGHT. 


447 


CHAPTER    XVI 


EXCESSIVE   TOLLS,   FARE,   AND   FREIGHT. 


1.  English  companies  created  sometimes,  for 

maintaining  road  only. 

2.  Where  excessive  tolls  taken  may  be  re- 

covered back. 

3.  So  also  may  excessive  fare  and  freight. 

4.  By  English  statute,  packed  parcels  must 

be  rated  hi  mass. 

5.  Nature  of  railway  traffic  requires  unity  of 

management  and  control. 

6.  Tolls  upon  railways  almost  unknown  here. 

Fare  and  freight  often  limited. 

7.  Guaranty  of  certain  profit  on  investment 

lawful. 


8.  Restriction  of  freight  to  certain  rate  pet 

ton,  extends  to  whole  line. 

9.  Need  net  declare  for  tolls. 

0.  Mode  of  establishing  and  requisite  proof 

1.  A  provision  in  a  railway  cl tarter  for  the 

payment  of  a  certain  tonnage  to  the 
state  is  only  a  mode  of  taxation. 
Where  a  company  is  allowed  to  take  tolls 
on  sections  of  their  road  this  makes  each 
section  a  distinct  work. 
13,  14.  Discussion  of  cases  in  New  York  in 
regard  to  the  difference  between  fares 
taken  in  the  cars  and  at  the  stations. 


12 


§  124.  1.  By  the  English  statutes,  companies  are  created  who 
own  the  railway,  stations,  &c,  merely,  and  who  are  empowered 
to  demand  certain  tolls  of  other  persons,  or  companies,  for  the 
use  of  such  road. 

2.  In  such  cases,  if  illegal  tolls  are  demanded  and  paid,  the 
excess  may  be  recovered  back,  as  money  had  and  received,  to 
the  use  of  the  person  paying  it,  upon  the  general  principles  of 
law  applicable  to  the  subject  of  tolls,  and  the  demand  and  receipt 
of  excessive  tolls.1 

Where  the  English  statute 2  gave  the  company  the  right,  where 
any  person  should  fail  to  pay  the  toll  due  upon  any  carriage,  to 
detain  and  sell  the  same,  it  was  held  incumbent  upon  the  com- 
pany first  to  demand  the  sum  due  for  toll,  and  that  this  was  a 
condition  precedent  to  the  right  to  sell  under  the  statute.3  It 
was  also  considered  here  that  a  charge  for  transporting  carriages 
back  is  not  a  toll,  but  something  which  may  be  compensated  by 
special  agreement  between  the  parties ;  and  if  it  be  demanded  as 

1  Fearnley  v.  Morley,  5  B.  &  C.  25.  See  also  this  subject  very  extensively 
examined  in  Centre  Turnpike  Co.  v.  Smith,  12  Vt.  K.  212 ;  post,  §  143.  Tolls 
are  a  payment  for  passing  along  the  line  of  the  railway,  and  should  be  received 
with  reference  to  the  number  of  carriages  passing.  Simpson  v.  Denison,  13 
Eng.  L.  &  Eq.  359. 

*  8  and  9  Vict.  c.  20,  §  97. 

1  Field  v.  Newport,  Ab.  &  Hereford  Railw.,  3  H.  &  N.  409. 

*355 


448  EXCESSIVE   TOLLS,   FARE,   AND   FREIGHT.  §  124. 

part  of  the  toll,  being  an  illegal  claim,  as  such,  it  vitiates  the 
entire  demand  and  renders  it  illegal. 

3.  And  the  same  rule  has  been  extended  to  the  recovery  of 
money  overpaid  upon  an  exorbitant  and  illegal  demand  of  freight 
or  fare  by  railways.  And  the  recovery  may  be  had,  although  the 
person  paying  it  did  not  tender  any  specific  sum,  as  due,  and 
although  a  portion  of  the  overcharge  was  on  account  of  what 
was  claimed  to  be  due  another  company.4 

*4.  And  under  the  English  statutes,  packed  parcels  of  the 
same  class  are  required  to  be  rated  in  mass.5 

5.  Most  of  the  business  upon  public  railways,  in  this  country, 
and  in  England,  at  the  present  time,  is  almost  of  necessity  trans- 
acted by  the  companies  themselves.  The  very  nature  of  the 
business  seems  to  require  absolute  unity  in  the  management 
and  control  of  the  traffic,  and  especially  in  this  country,  where  a 
large  proportion  of  the  roads  are  operated  upon  a  single  track, 
requiring  the  utmost  watchfulness  and  circumspection  to  avoid 
collisions.  We  suppose  the  idea  of  operating  a  railway,  with 
large  traffic,  in  England,  upon  a  single  track,  would  be  regard- 
ed as  too  glaring  an  absurdity  to  be  seriously  entertained.  But 
in  this  country  it  is  rather  the  rule  than  the  exception,  and  many 
of  the  continental  railways  in  Europe  have  only  a  single  track. 

6.  The  matter  of  tolls  upon  railways  is  a  thing  almost  un- 
known in  this  country,  and  very  little  practised  anywhere  at 
present.  But  the  English  special  acts,  and  the  American  rail- 
way charters,  very  often  fix  the  maximum  of  freight  and  fare 
which  it  shall  be  lawful  for  the  company  to  receive,  and  if  tolls 
are  allowed  to  be  taken  of  other  companies  or  persons,  these  also 
are  limited. 

4  Parker  v.  The  Bristol  &  Exeter  Railw.  Co.,  6  Railw.  C.  776.  See  also  Snow- 
den  v.  Davis,  1  Taunt.  359;  Atlee  v.  Backhouse,  3  M.  &  W.  633;  and  Spry  v. 
Emperor,  6  M.  &  W.  639,  where  the  general  subject  is  discussed.  In  Parker 
v.  The  Great  Western  Railw.  Co.,  3  Railw.  C.  563,  the  very  point  is  decided. 
Crouch  v.  London  &  N.  W.  Railw.  Co.,  2  Car.  &  K.  789  ;  Crouch  v.  Great 
Northern  Railw.,  25  Eng.  L.  &  Eq.  449. 

5  Parker  v.  The  Great  Western  Railw.  Co.,  8  Eng.  L.  &  Eq.  426.  This  sub- 
ject of  overcharge  and  the  right  to  recover  back  the  excess,  is  extensively  dis- 
cussed in  this  case,  and  in  the  case  of  Edwards,  Assignee  of  Edwards,  v.  The 
Great  Western  Railw.  Co.,  8  Eng.  L.  &  Eq.  447;  Crouch  v.  Great  Northern 
Railw.  Co.,  25  Eng.  L.  &  Eq.  449. 

*356 


§  124.  EXCESSIVE   TOLLS,   FARE,   AND   FREIGHT.  449 

7.  A  guaranty  of  a  certain  amount  of  profit  to  a  company,  by 
other  companies,  in  consideration  of  the  right  to  use  the  track  of 
such  company,  is  lawful.6 

8.  The  restriction  in  the  charter  of  the  Camden  &  Amboy 
Railway  of  freight  to  eight  cents  per  ton  per  mile,  extends  to 
the  whole  distance  of  the  line  of  said  company,  although  some 
of  it  is  by  water,  and  includes  the  auxiliary  roads  through  New 
Brunswick  and  Trenton.7 

9.  In  an  action  to  recover  tolls  due  to  a  railway  it  is  not  ne- 
cessary to  describe  the  dues  as  tolls.  Any  description  which 
sufficiently  indentifies  the  nature  of  the  service  for  which  com- 
pensation is  demanded,  is  all  that  is  required.8 

10.  Freights  upon  a  railway  may  be  established  by  the  direc- 
tors, or  by  their  agents ;  and  their  assent  will  be  presumed,  if 
nothing  appear  to  the  contrary.8  And  where  the  directors  are 
required  to  establish  freights,  and  they  do  establish  a  printed 
tariff,  that  is  to  be  regarded  as  the  original ;  and  where  copies  of 
such  tariff  are  required  to  be  posted  at  the  depots  or  stations 
of  the  company,  that  affords  sufficient  excuse  for  the  absence  of 
such  copies  to  justify  the  admission  of  secondary  evidence.8 

11.  A  provision  in  the  charter  of  a  railway  company  that  it 
shall  pay  a  certain  tonnage  to  the  state  upon  all  freight  trans- 
ported by  it,  is  only  a  mode  of  taxation,  and  is  not  in  conflict 
with  any  provision  of  the  United  States  constitution  securing 
to  Congress  the  exclusive  power  of  regulating  commerce  with 
foreign  nations  and  among  the  states,  and  prohibiting  the  states, 
without  the  Consent  of  congress,  from  levying  duties  on  imports 
and  exports.  The  company  by  accepting  the  charter  containing 
such  a  provision  virtually  made  an  express  contract  to  perform 

6  Great  N.  Railw.  v.  S.  Yorkshire  Railw.,  25  Eng.  L.  &  Eq.  482. 

7  Camden  &  Amboy  Railw.  v.  Briggs,  1  N.  J.  (Zab.)  406. 

Where  one  company  leased  its  line  to  another,  at  a  certain  rate,  for  all  min- 
erals transported,  among  other  commodities,  it  was  held,  that  the  owners  of 
minerals  transported  upon  such  line,  could  not,  by  injunction,  compel  the  les- 
sees to  transport  minerals  upon  the  same  terms  on  which  they  agreed  with  the 
other  company,  by  way  of  compensation  to  them,  the  latter  being  a  rent  merely, 
and  not  a  rate  of  toll  or  freight.  Finnie  v.  Glasgow  &  Southwestern  Railw.  Co., 
30  Law  Times,  26. 

Manchester  &  Lawrence  Railw.  v.  Fisk,  33  New  H.  R.  297. 

VOL.  I.  29 


450  EXCESSIVE   TOLLS,   FARES,   AND   FREIGHT.  §  124. 

it,  and  have  no  just  cause  of  complaint,  treating  the  provision 
either  as  a  law  or  a  contract.9 

12.  And  a  provision  in  the  charter  of  a  railway  company  or 
other  road  company,  that  it  may  demand  tolls  upon  any  particu- 
lar portion  of  its  road  as  soon  as  completed  and  in  operation, 
has  been  construed  to  create  such  portion  a  distinct  public  work, 
not  liable  to  be  affected  by  failure  to  complete  the  remainder  of 
the  work  embraced  in  the  same  charter.  But  if  the  work  is  not 
done  in  a  proper  manner,  that  will  be  a  cause  of  forfeiture  not 
cured  by  the  provision  allowing  tolls  to  be  levied  upon  distinct 
portions  of  the  entire  line.10  But  it  is  here  left  in  doubt  whether 
such  defect  in  construction  will  operate  to  forfeit  the  entire  road 
or  only  those  sections  where  such  defects  occur. 

13.  We  have  discussed  the  question  of  railway  companies 
making  a  discrimination  between  fares  paid  in  the  cars  and  at 
their  stations.11  Under  the  New  York  statute,  which  allows  of  this 
discrimination  only  where  the  company  keep  their  ticket  office 
open,  it  was  held  the  company  could  only  make  that  discrimina- 
tion in  the  cases  specified  in  the  statute,  and  not  in  other  cases, 
even  if  the  passenger  took  the  cars  after  midnight,  the  company 
being  required  to  keep  the  ticket  office  open  only  until  9 
o'clock,  P.  M.12 

14.  This  question  is  still  further  discussed  in  a  later  case  ; 13 
but  the  questions  turned  chiefly  upon  the  construction  of  the 
statute  in  force  there,  requiring  the  company  to  keep  all  their 
ticket  offices  open  one  hour  before  the  trains  start,  except  between 
9,  P.  M.,  and  5,  A.  M.,  when  they  are  only  required  to  do  so  at 
Utica  and  other  principal  offices,  and  which  also  enacts,  that  if 
any  person  shall,  at  any  station  where  a  ticket  office  is  kept  open, 
enter  the  cars  as  a  passenger,  without  having  first  purchased  a 
ticket,  it  shall  be  lawful  for  the  company  to  require  five  cents 
extra  fare  of  such  person ;  and  it  was  decided  that  the  extra  fare 

9  Pennsylvania  Railw.  v.  The  Commonwealth,  3  Grants'  Cas.  128.  As  to  the 
right  to  tax  shares  in  a  corporation  for  county  purposes,  see  Lycoming  County 
v.  Gamble,  47  Penn.  St.,  106. 

10  The  People  v.  J.  &  M.  Plank-Road  Co.,  9  Mich.  R.  285. 

11  Ante,  §  28. 

12  Chase  v.  N.  Y.  Central  R.  Co.,  26  N.  Y.  R.  523. 

13  Nellis  v.  N.  Y.  Central  R.  Co.,  30  N.  Y.  R.  505. 


§  124.  EXCESSIVE   TOLLS,   FARES,   AND   FREIGHT.  451 

could  only  be  demanded  where  the  company  kept  a  ticket  office 
open.  And  it  will  make  no  difference  that  the  passenger  entered 
the  cars  at  an  hour  when  the  ticket  offices  were  required  to  be 
kept  open,  if  such  was  not  the  fact.  It  was  also  held,  that  the 
company,  by  so  demanding  and  receiving  the  five  cents  extra 
fare  when  not  entitled  to  receive  it,  became  liable  to  the  penalty 
of  $50,  under  the  statute,  for  taking  more  fare  than  allowed 
by  law. 


452 


LIABILITY   FOR   FIRES   BY   ENGINES. 


§125. 


♦CHAPTER    XVII 


LIABILITY   FOR   FIRES,    COMMUNICATED   BY   COMPANY'S   ENGINES. 


1.  Fact  of  fires  being  communicated  evidence 

of  negligence. 

2.  This  was  at  one  time  questioned  in  Eng- 

land. 

3.  Opinion  of  Tindal,  Ch.  J.,  upon  this  point. 

4.  English  companies  feel  bound  to  use  pre- 

cautions against  fire. 

5.  Rule  of  evidence,  in  this  country,  more  fa- 

vorable to  companies. 

6.  But  the  company  are  liable  for  damage  by 

fire  through  want  of  care  on  their  part. 

7.  One  is  not  precluded  from  recovery,  by 

placing  buildings  in  an  exposed  situa- 
tion. 

8.  Where  insurers  pay  damages  on  insured 


10 


11 


property,  may  have  action  against  com- 
pany. 
9.    Where,  company  made  liable  for  injury 
to  all  property,  are  allowed  to  insure. 
Construction  of  statutes  making  compa- 
nies liable  for  loss  by  fires. 
Extent  of  responsibility   of  insurer  of 
goods  carried. 

12.  Railways  responsible  for  engines  which 

do  not  consume  smoke. 

13.  Construction  of  Massachusetts  statute  and 

mode  of  trial. 

14.  15.  For  what  acts  railway  companies  may 

become  responsible  without  any  actual 
negligence. 


§  125.  1.  In  the  English  courts  it  seems  to  have  been  settled, 
as  early  as  the  year  1846,1  upon  great  consideration,  that  the  fact 
of  premises  being  fired  by  sparks  emitted  from  a  passing  engine, 
is  primd  facie  evidence  of  negligence  on  the  part  of  the  com- 
pany, rendering  it  incumbent  upon  them  to  show  that  some  pre- 
cautions had  been  adopted  by  them  reasonably  calculated  to 
prevent  such  accidents. 

2.  In  an  earlier  case,  where  the  facts  were  reported,  by  the 
judge,  at  Nisi  Prius,  for  the  opinion  of  the  full  court,  that  a  stack 
of  beans  near  the  track  of  the  railway  was  fired  and  consumed 
by  sparks  from  the  company's  engine,  of  the  ordinary  construc- 
tion, and  used  in  the  ordinary  mode,  the  court  said  the  facts 
reported  did  not  show,  necessarily,  either  negligence  or  no  neg- 
ligence.    That  was  a  question  for  the  jury.2 

3.  But  the  court  in  the  case  of  Piggott  v.  Eastern  Co.'s  Rail- 
way, went  much  further.  Tindal,  Ch.  J.,  said  :  "  The  defendants 
are  a  company  intrusted  by  the  legislature  with  an  agent  of  an 
extremely  dangerous  and  unruly  character,  for  their  own  private 

1  Piggott  v.  Eastern  Counties  Railw.  Co.,  3  C.  B.  229. 
a  Aldridge  v.  Great  Western  Railw.,  3  M.  &  G.  515 ;  2  Railw.  C.  852. 
*357 


§  125.  LIABILITY   FOR   FIRES   BY  ENGINES.  453 

and  particular  advantage  ;  and  the  law  requires  of  them,  that 
they  shall,  in  the  exercise  of  the  rights  and  powers  so  conferred 
upon  them,  adopt  such  precautions  as  may  reasonably  prevent 
damage  *  to  the  property  of  third  persons,  through  or  near  which 
their  railway  passes.  The  evidence  in  this  case  was  abundantly 
sufficient  to  show,  that  the  injury  of  which  the  plaintiff  com- 
plains was  caused  by  the  emission  of  sparks  or  particles  of 
ignited  coke,  coming  from  one  of  the  defendants'  engines ;  and 
there  was  no  proof  of  any  precaution  adopted  by  the  company 
to  avoid  such  a  mischance.  I  therefore  think  the  jury  came  to  a 
right  Conclusion,  in  finding  that  the  company  were  guilty  of 
negligence,  and  that  the  injury  complained  of  was  the  result  of 
such  negligence.  There  are  many  old  authorities  to  sustain  this 
view  ;  for  instance,  the  case  of  Mitchil  v.  Alestree,  1  Vent.  295, 
for  an  injury  resulting  to  the  plaintiff  from  the  defendant's  riding 
an  unruly  horse  in  Lincoln's  Inn  Fields  ;  that  of  Bayntine  v. 
Sharp,  1  Lutw.  90,  for  permitting  a  mad  bull  to  be  at  large  ;  and 
that  of  Smith  v.  Pelah,  2  Stra.  1264,  for  allowing  a  dog,  known 
to  be  accustomed  to  bite,  to  go  about  unmuzzled.  The  precau- 
tions suggested  by  the  witnesses  called  for  the  plaintiff  in  this 
case,  may  be  compared  to  the  muzzle  in  the  case  last  referred  to. 
The  case  of  Beaulien  v.  Finglam,  in  the  Year-Books,  P.  2,  H.  4, 
fol.  18,  pi.  5,  comes  near  to  this.  There,  the  defendant  was 
charged,  in  case,  for  so  negligently  keeping  his  fire  as  to  occasion 
the  destruction  of  the  plaintiff's  property  adjoining.  The  duty 
there  alleged  was,  — '  quare,  cum  secundum  leg-em  et  consuetudi- 
nem  regni  nostri  Anglice  hactenus  obtentam,  quod  quilibet  de 
eodem  regno  ignem  suum  salvo  et  secure  custodiat,  et  custodire 
teneatur,  ne  per  ignem  suum  damnum  aliquod  vicinis  suis 
eveniat.'  " 

4.  The  principle  of  this  case  seems  to  have  been  acquiesced 
in  by  the  railways  in  England,3  and  such  precautions  used,  as 

3  Hammon  v.  Southeastern  Railw.  Co.,  Maidstone  Spring  Assizes,  1845,  before 
Lord  Denma?i,  Ch.  J.,  for  the  destruction  of  farm  buildings,  including  a  thatched 
barn,  by  sparks  emitted  from  the  defendants'  engines  in  passing  along  the  line  of 
their  railway.  There  was  evidence  of  the  fire  being  so  caused,  and  that  defend- 
ants' engines  had  no  wire  guard,  or  perforated  plate,  to  prevent  the  escape  of 
the  sparks,  although  both  were  in  use  before  that  time.  There  was  evidence  in 
this  case  that  it  was  principally  where  the  engines  were  overtasked  that  they 

*358 


454  LIABILITY   FOR   FIRES   BY  ENGINES.  §  125. 

to  secure  the  engines  against  emitting  sparks.  In  this  last  case 
it  was  held  proper  evidence  to  go  to  the  jury  that  the  company's 
*  engines  had  before,  in  passing  along  the  line,  emitted  sparks,  a 
sufficient  distance  to  have  done  the  injury  in  the  present  case, 
as  a  means  of  ascertaining  the  possibility  of  the  building  being 
fired  in  the  manner  alleged.  The  testimony  in  this  case  showed, 
that  the  danger  of  emitting  sparks  is  very  much  increased  by  , 
overtasking  the  engine,  and  that  it  may  be  altogether  avoided  by 
shutting  off  the  steam  in  passing  a  place  where  there  is  danger 
from  sparks,  or  that  the  danger  may  be  guarded  against  by 
mechanical  precautions. 

The  subject  has  been  a  great  deal  discussed  in  more  recent 
English  cases.4  In  this  case  it  was  held  by  Bramwell  B.,  at  the 
jury  trial,  and  his  views  seem  to  have  been  sustained  by  the 
court  of  exchequer,  that  the  mere  fact  of  the  company  using  fire 
as  a  means  of  locomotion,  from  which  occasional  fires  will  be  com- 
municated, even  with  the  utmost  care  to  prevent  it,  made  them 
responsible  for  damage  caused  thereby.  But  in  the  exchequer 
chamber  the  judges  seem  to  have  been  agreed,  that  the  legisla- 
ture having  legalized  this  mode  of  locomotion,  it  could  not  sub- 
ject the  company,  while  pursuing  a  legal  business,  in  a  legal 
mode,  to  damage  thereby  caused  to  others,  unless  through  some 
degree  of  neglect.  If  the  company  resort  to  all  known  precau- 
tions against  fire  they  are  not  liable. 

5.  But  in  this  country  it  must  be  confessed  the  rule  of  the 
liability  of  railways  for  damage  done  by  fire  communicated  by 
their  engines,  is  more  favorable  to  the  companies  than  in  Eng- 
land.    It  seems  to  have  been  assumed,  in  this  country,  that  the 

were  liable  to  emit  sparks.  His  Lordship  directed  the  jury  that  it  lay  upon  the 
plaintiff  to  establish  negligence ;  they  were  to  consider  that  the  plaintiff  might 
have  saved  all  hazard  by  tiling  his  barn,  and  also  whether  the  train  was  driven 
too  fast.  The  plaintiff  had  a  verdict,  and  the  court  subsequently  refused  a  new 
trial.  Taylor  v.  Same  Co.  was  tried  at  same  term,  with  similar  proof  and  the 
same  result.     Walford  on  Railways,  183,  184,  and  notes. 

4  Vaughn  v.  Taff-Vale  Railw.,  3  H.  &  N.  743  ;  s.  c.  in  Exchequer  Chamber,  6 
Jur.  N.  S.  899.  See  also  The  King  v.  Pease,  4  B.  &  Ad.  30,  upon  which  the  last 
case  is  decided  in  Exchequer  Chamber.  In  reference  to  the  decision  in  the 
Court  of  Exchequer,  we  said  in  our  last  edition  it  was  going  further  than  any 
just  principle  would  allow,  unless  the  defendant's  business  is  regarded  as  un- 
lawful. Post,  pi.  14,  15,  and  note. 
*359 


§  125.  LIABILITY   FOR   FIRES   BY  ENGINES.  455 

business  of  railways  being  lawful,  no  presumption  of  negligence 
arises  from  the  fact  of  fire  being  communicated  by  their  en- 
gines.5 

But  after  other  probable  modes  of  accounting  for  the  fire  have 
been  disproved,  the  onus  is  on  the  company  to  prove  that  the 
fire  was  not  communicated  by  their  engines  of  the  train  passing 
at  the  time.6 

6.  In  this  country  it  has  been  held,  that  proof  that  sparks  have 
upon  other  occasions  been  emitted  and  caused  fires  along  the 
line  of  the  road,  is  not  admissible,  either  to  show  that  defend- 
ants' engine  caused  the  damage,  or  to  rebut  defendants'  proof  of 
care  and  diligence  in  using  their  engines."  But  the  testimony 
seems  to  have  been  received  in  other  cases.8  All  the  cases  upon 
this  subject  hold  railways  bound  to  the  exercise  of  care,  skill, 
and  diligence,  to  prevent  fires  being  communicated  in  this  mode, 
and  make  them  liable  in  case  of  damage  through  their  negli- 
gence.9 

7.  And  one  is  not  precluded  from  recovery  in  such  cases,  by 
having  placed  his  buildings  or  other  property  in  an  exposed  posi- 
tion.10 

8.  And  where  the  railway  companies  are  made  liable  for  all 
*  damage  in  this  way,  as  they  are  in  Massachusetts,  and  some  of 
the  other  states,  by  statute,  if  one  whose  property  is  insured  suf- 
fer loss  in  this  way,  and  the  insurers  pay  him  his  entire  loss, 

5  Rood  v.  N.  Y.  &  Erie  Railw.,  18  Barb.  SO  ;  Lyman  v.  Boston  &  W.  Railw., 
4  Cush.  288  ;  Burroughs  v.  The  Housatonic  Railw.,  15  Conn.  R.  124.  In  this 
case  the  court  compare  the  injury  to  that  of  fire  communicated  by  sparks  from 
the  chimney  of  a  dwelling-house.  Where  the  statute  recpuires  the  company  to 
show  that  the  fire  occurred  "  without  any  negligence  on  their  part,"  it  was  held 
sufficient  to  show  that  their  engines  were  properly  constructed,  in  good  order, 
and  had  the  usual  apparatus  for  preventing  the  escape  of  sparks,  and  were 
managed  by  discreet  persons.     B.  &  S.  R.  v.  Woodruff,  4  Maryland,  242. 

6  Sheldon  v.  Hudson  River  R.,  4  Kernan,  218. 

7  Baltimore  &  Susquehannah  Railw.  v.  Woodruff,  4  Maryland  R.  242. 

8  McCready  v.  The  Railw.  Co.,  2  Strob.  358.  Sheldon  v.  Hudson  River  Railw., 
4  Kernan,  218 ;  s.  c.  29  Barb.  226. 

9  15  Conn.  R.  124 ;  Huyett  v.  Phil.  &  R.  Railw.,  23  Penn.  St.  373.  The  jury  are 
to  determine  the  question  of  negligence.  Id.  The  company  are  bound  to  use 
more  care  in  regard  to  fires  in  a  very  dry  time,  or  where  property  is  very  much 
exposed.     Id. 

10  Coop  v.  Champ.  Trans.  Co.,  1  Denio,  91,  99,  101. 

*360 


456  LIABILITY   FOR   FIRES   BY  ENGINES.  §  125. 

they  may  recover  in  his  name  against  the  company.11  And  it 
was  decided  in  one  case  that  the  insurer  might  recover  of  the 
carriers  in  the  name  of  the  consignor,  on  whose  behalf  the  policy 
was  effected,  after  having  paid  the  amount  of  the  loss  to  the  con- 
signor.12 

We  cannot  forbear  to  add  that  the  interference  of  the  legisla- 
tures upon  this  subject,  in  many  of  the  American  states,  seems 
to  us  an  indication  of  the  public  sense,  in  favor  of  placing  the 
risk  in  such  cases  upon  the  party  in  whose  power  it  lies  most  to 
prevent  such  injuries  occurring.  There  seems  to  us  both  justice 
and  policy  in  the  English  rule  upon  the  subject. 

9.  By  statute  in  some  of  the  states,  as  we  have  seen,  railways 
are  made  liable  for  any  injury  to  "  buildings  or  other  property 
of  any  person  —  by  fire  communicated,"  by  their  locomotive  en- 
gines, and  it  is  sometimes  specially  provided  that  railways  shall 
have  an  insurable  interest  in  such  property.  But  it  has  been 
held  that  such  statutory  liability  only  extends  to  property  of  a 
permanent  nature,  and  upon  which  an  insurance  may  be  ef- 
fected ;  and  that  for  injuries  of  this  kind  to  other  property  the 
company  will  only  be  responsible  for  negligence,  unskilfulness, 
or  imprudence  in  running  and  conducting  their  engines.13 

11  Hart  v.  The  Western  Railw.,  13  Met.  99.  And  under  such  a  statute,  where 
the  sparks  from  the  engine  communicated  fire  to  a  shop,  and  the  wind  drove  the 
sparks  from  the  shop  sixty  feet  across  the  street,  and  set  fire  to  a  house,  it  was 
held  that  this  second  fire  must  be  regarded  as  "  communicated "  by  the  com- 
pany's engine,  within  the  statute.     Id. 

In  a  contract  of  insurance  in  favor  of  a  railway  company,  upon  "  cars  of  all 
descriptions  "  —  "  on  the  line  of  their  road  and  in  actual  use,"  where,  in  answer  to 
the  inquiry  "  where  the  property  was  situated,"  the  company  reply,  "  from  Boston 
to  Fitchburg  and  branches  this  side  of  Fitchburg  "  ;  and  the  cars  of  the  plaintiff's 
company  loaded  with  ice,  standing  upon  a  track  belonging  to  the  proprietors  of  a 
wharf  where  the  ice  was  unloaded,  but  communicating  with  the  track  of  the 
Fitchburg  road,  were  burned  by  a  fire  communicated  from  the  wharf,  it  was  held 
to  come  within  the  contract,  and  the  insurance  company  were  held  liable.  Fitch- 
burg Railw.  v.  Charlestown  Mutual  Ins.  Co.,  7  Gray,  64. 

12  Burnside  v.  Steamboat  Company,  10  Rich.  (S.  C.)  113 ;  Garrison  v. 
Memphis  Ins.  Co.,  19  How.  (U.  S.)  312. 

13  Chapman  v.  Atlantic  &  St.  Lawrence  Railw.,  37  Maine  R.  92.  This  is  an 
action  for  the  loss  of  cedar  posts,  piled  upon  land  adjoining  the  railway,  by  the 
consent  of  the  owner  of  the  land,  and  set  on  fire  by  a  spark  from  the  defendants' 
engine,  and  they  were  held  not  liable  under  the  statute. 


§  125.  LIABILITY   FOR   FIRES   BY   ENGINES.  457 

10.  And  where  by  statute  railway  companies  are  made  lia- 
ble for  all  damages  caused  to  property  so  near  the  road  as 
to  be  exposed  by  fire  from  their  engines,  it  was  held  to  ex- 
tend to  all  property  subject  to  insurance,  and  to  include  grow- 
ing trees.14 

11.  Many  of  the  English  railway  companies  make  it  a  condi- 
tion that  certain  goods  shall  be  insured  and  declared,  or  else 
they  will  not  be  responsible  for  any  loss  which  may  occur  in  re- 
gard to  them.  Such  a  condition  seems  reasonable,  and  it  is  so 
treated  by  the  English  courts.  But  to  be  any  protection  to  the 
companies  it  must  assume  that  the  insurers  are  bound  to  make 
good  any  loss,  as  well  for  the  benefit  of  the  assured  as  for  that  of 
the  company,  and  that  the  company  are  not  responsible  to  the 
insurer  unless  perhaps  for  neglect  of  duty  as  a  faithful  bailee.15 

12.  The  English  statute 16  subjects  railway  companies  to  a 
penalty  for  each  day  they  use  an  engine  upon  their  roads  so 
constructed  as  not  to  consume  its  own  smoke.  But  it  has 
been  held  that  this  only  refers  to  the  construction  of  the  engine 
when  under  proper  management,  and  that  the  penalty  is  not  in- 
curred by  an  engine  emitting  smoke  instead  of  consuming  it  in 
consequence  of  bad  management  and  not  of  defective  construc- 
tion.17 

13.  The  Massachusetts  statute,  making  railway  companies  re- 
sponsible for  loss  by  fire  communicated  by  their  engines,  and 
giving  them  an  insurable  interest  in  the  property  exposed  to  fire 
in  that  mode,  was  held  to  embrace  personal  property,  although 
the  company  had  no  knowledge  or  reasonable  cause  to  believe 
that  such  property  was  situated  where  it  might  be  so  injured.18 
And  in  the  trial  of  an  action  for  such  injury,  where  it  was 
claimed  that  no  burning  sparks  could  reach  far  enough  to  com- 
municate the  fire,  it  is  competent  to  show  tlmt  the  same  engine, 

14  Pratt  v.  Atlantic  &  St.  Lawrence  Railw.,  42  Maine  R.  579. 

15  Peck  v.  North  Staffordshire  Railw.,  Ellis  B.  &  Ellis,  956. 
19  8  &  9  Vic.  ch.  20,  §  114. 

17  Manchester,  Sheffield,  &  Lincolnshire  Railw.  v.  Wood,  29  Law  J.  29  ;  s.  c. 
1  L.  T.  N.  S.  31 ;  s.  c.  2  Bl.  &  El.  344. 

18  Ross  v.  Boston  &  Worcester  Railw.,  6  Allen,  87.  The  company  should  use 
precautions  to  prevent  fire  escaping  from  their  engines  or  they  will  be  respon- 
sible for  consequences,  Bass  v.  Chicago,  Bur.  &  Quincy  Railw.  Co.,  28  111.  R.  9. 


458  LIABILITY   FOR   FIRES   BY   ENGINES.  §  125. 

using  similar  fuel,  emitted  sparks  reaching  a  greater  distance.18 
And  where  it  was  attempted  to  show  that  similar  engines  did 
not  on  other  roads  emit  sparks  reaching  that  distance,  it  is  com- 
petent to  prove  that  such  engines  on  other  roads  have  emitted 
sparks  which  did  communicate  fire  at  that  distance.18  In  such  an 
action,  where  the  question  of  plaintiff's  want  of  due  care  depended 
upon  the  consideration  of  the  dryness  of  the  season,  the  strength 
and  direction  of  the  wind,  and  the  condition  of  the  plaintiff's 
buildings,  it  is  proper  to  submit  to  the  jury,  under  general  in- 
structions, whether  the  plaintiff  exercised  due  care  or  not,  and 
if  this  is  done  no  exception  lies  to  a  refusal  to  instruct  the  jury 
that  "  if  the  season  was  dry,  and  the  wind  was  from  the  railway 
and  strong,  and  the  plaintiff  knew  those  facts  and  left  a  door 
of  a  shed  open  towards  the  railway,  and  combustible  materials 
within  the  shed,  and  that  contributed  to  the  fire,  it  is  evidence  of 
negligence  on  his  part,  which  should  preclude  his  recovery."  18 

14.  A  question  of  considerable  practical  importance  has  re- 
cently been  determined  by  the  Court  of  Exchequer  Chamber  in 
England,  which  may  be  thought  sometimes  to  have  a  bearing 
upon  the  conduct  of  railways.  The  proposition  there  maintained 
is,  that  if  a  person  bring  on  his  own  land  anything,  which,  if 
it  escape,  may  prove  injurious  to  his  neighbor's  property,  such 
as  a  large  body  of  water,  he  is  liable  to  make  compensation  for 
any  injury  that  may  accrue  from  its  escape  out  of  his  land ;  and 
it  is  no  excuse,  if  it  do  escape  and  cause  damage  to  his  neighbor, 
that  the  injury  was  caused  without  any  default  or  negligence  on 
his  part.19 

19  Fletcher  v.  Bylands,  12  Jur.  N.  S.  603;  s.  c.  11  Id.  714.  The  learned 
judge,  in  giving  the  opinion,  said  :  "It  appears  from  the  statement  in  the  case 
that  the  plaintiff  was  damaged  by  his  property  being  flooded  by  water,  which, 
without  any  fault  on  his  part,  broke  out  of  a  reservoir  constructed  on  the  defend- 
ants' land  by  the  defendants'  orders,  and  maintained  by  the  defendants. 

"  It  appears  from  the  statement  in  the  twelfth  paragraph  of  the  case,  that  the 
coal  under  the  defendants'  land  had,  at  some  remote  period,  been  worked  out, 
but  that  this  was  unknown  at  the  time  when  the  defendants  gave  directions  to 
erect  the  reservoir ;  the  water  in  the  reservoir  would  not  have  escaped  from  the 
defendants'  land,  and  no  mischief  would  have  been  done  to  the  plaintiff  but  for 
this  latent  defect  in  the  defendants'  subsoil ;  and  it  further  appears,  from  the 
seventeenth  and  eighteenth  paragraphs,  that  the  defendants  selected  competent 
engineers  and  contractors  to  make  their  reservoir,  and  themselves  personally  con- 


§  125.  LIABILITY   FOR   FIRES   BY  ENGINES.  459 

15.  The  carefully  considered  judgment  of  the  full  court  of 
Exchequer  Chamber  by  Blackburn,  J.,  contains  so  many  points 

tinued  in  total  ignorance  of  what  we  have  called  the  latent  defect  in  the  subsoil, 
but  that  those  persons  employed  by  them,  in  the  course  of  the  work,  became 
aware  of  the  existence  of  ancient  shafts  filled  up  with  soil,  though  they  did  not 
know  or  suspect  that  they  were  shafts  communicating  with  old  workings.  It  is 
found  that  the  defendants  personally  were  free  from  all  blame,  but  that,  in  fact, 
proper  care  and  skill  was  not  used  by  the  persons  employed  by  them  to  provide 
for  the  sufficiency  of  the  reservoir  in  reference  to  these  shafts.  The  consequence 
was,  that  when  the  reservoir  was  filled,  the  water  burst  into  the  shafts  and  flowed 
down  through  them  into  the  old  workings,  and  thence  into  the  plaintiff's  mine, 
and  there  did  the  mischief. 

"  The  plaintiff,  though  free  from  all  blame  on  his  part,  must  bear  the  loss,  unless 
he  can  establish  that  it  was  the  consequence  of  some  default  for  which  the  defend- 
ants are  responsible.  The  question  of  law,  therefore,  arises,  what  is  the  obliga- 
tion which  the  law  casts  upon  a  person  who,  like  the  defendants,  lawfully  brings 
on  his  own  land  something  which,  though  harmless  whilst  it  remains  there,  will 
naturally  do  mischief  if  it  escape  out  of  his  land  ?  It  is  agreed  on  all  hands,  that 
he  must  take  care  to  keep  in  that  which  he  has  brought  on  the  land  and  keeps 
there,  in  order  that  it  may  not  escape  and  damage  his  neighbors ;  but  the  ques- 
tion arises,  whether  the  duty  which  the  law  casts  upon  him  under  such  circum- 
stances is  an  absolute  duty  to  keep  it  in  at  his  peril,  or  is,  as  the  majority  of 
the  Court  of  Exchequer  have  thought,  merely  a  duty  to  take  all  reasonable  and 
prudent  precautions  in  order  to  keep  it  in,  and  no  more.  If  the  first  be  the  law, 
the  person  who  has  brought  on  his  land  and  kept  there  something  dangerous,  and 
failed  to  keep  it  in,  is  responsible  for  all  the  natural  consequences  of  its  escape. 
If  the  second  be  the  limit  of  his  duty,  he  would  not  be  answerable  except  on 
proof  of  negligence,  and  consequently  would  not  be  answerable  for  escape 
arising  from  any  latent  defect  which  ordinary  prudence  and  skill  could  not 
detect. 

"  Supposing  the  second  to  be  the  correct  view  of  the  law,  a  further  question 
arises  subsidiary  to  the  first,  namely,  whether  the  defendants  are  not  so  far 
identified  with  the  contractors,  whom  they  employed,  as  to  be  responsible  for 
the  consequences  of  their  want  of  care  and  skill  in  making  the  reservoir  in  fact 
insufficient  with  reference  to  the  old  shafts,  of  the  existence  of  which  they  were 
aware,  though  they  had  not  ascertained  where  the  shafts  led  to. 

"  We  think  that  the  rule  of  law  is,  that  the  person  who,  for  his  own  purposes, 
brings  on  his  land  and  collects  and  keeps  there  anything  likely  to  do  mischief  if 
it  escapes,  must  keep  it  at  his  peril,  and  that  if  he  does  not  do  so,  he  is  prima 
facie  answerable  for  all  the  damage  which  is  the  natural  consequence  of  its 
escape.  He  can  excuse  himself  by  shoAving  that  the  escape  was  the  consequence 
of  vis  major,  or  the  act  of  God  ;  but,  as  nothing  of  the  sort  exists  here,  it  is  un- 
necessary to  inquire  what  excuse  would  be  sufficient.  The  general  rule,  as  above 
stated,  seems  on  principle  just.  The  person,  whose  grass  or  corn  is  eaten  down 
by  the  escaping  cattle  of  his  neighbor,  or  whose  mine  is  flooded  by  the  water 


4G0  LIABILITY   FOR   FIRES  BY  ENGINES.  §  125. 

bearing  upon  questions  which  are  liable  to  arise  in  the  course  of 
the  construction  and  operation  of  railways,  that  we  have  deemed 

from  his  neighbors'  reservoir,  or  whose  cellar  is  invaded  by  the  filth  of  his  neigh- 
bor's privy,  or  whose  habitation  is  made  unhealthy  by  the  fumes  and  noisome  vapors 
of  his  neighbor's  alkali  works,  is  damnified  without  any  fault  of  his  own  ;  and  it 
seems  but  reasonable  and  just  that  the  neighbor,  who  has  brought  something  on 
his  own  property  which  was  not  naturally  there,  harmless  to  others  so  long  as  it  is 
confined  to  his  own  property,  but  which  he  knows  to  be  mischievous  if  it  gets  on  his 
neighbor's,  should  be  obliged  to  make  good  the  damage  which  ensues  if  he  does  not 
succeed  in  confining  it  to  his  own  property.  But  for  his  act  in  bringing  it  there 
no  mischief  could  have  accrued,  and  it  seems  but  just  that  he  should  at  his  peril 
keep  it  there,  so  that  no  mischief  may  accrue  or  answer  for  the  natural  and  antici- 
pated consequences.  And,  upon  authority,  this  we  think  is  established  to  be  the 
law,  whether  the  things  so  brought  be  beasts,  or  water,  or  filth,  or  stenches. 

"  The  case  that  has  most  commonly  occurred,  and  which  is  most  frequently  to 
be  found  in  the  books,  is  as  to  the  obligation  of  the  owner  of  cattle  which  he  has 
brought  on  his  land,  to  prevent  their  escaping  and  doing  mischief.  The  law  as 
to  them  seems  to  be  perfectly  settled  from  early  times.  The  owner  must  keep 
them  in  at  his  peril,  or  he  will  be  answerable  for  the  natural  consequences  of  their 
escape ;  that  is,  with  regard  to  tame  beasts,  in  the  grass  they  eat  and  trample 
upon,  though  not  for  any  injury  to  the  person  of  others,  for  our  ancestors  have 
settled,  that  it  is  not  the  general  nature  of  horses  to  kick  or  bulls  to  gore  ;  but, 
if  the  owner  knows  that  the  beast  has  a  vicious  propensity  to  attack  man,  he  will 
be  answerable  for  that  too. 

"  As  early  as  the  Year  Book,  20  Edw.  4, 11,  pi.  10,  Brian,  C.  J.,  lays  down  the 
doctrine  in  terms  very  much  resembling  those  used  by  Lord  Holt,  in  Tenant  v. 
Goldwin,  which  will  be  referred  to  afterwards.  It  was  trespass  with  cattle. 
Plea,  that  the  defendant's  land  adjoined  a  place  where  the  defendant  had  com- 
mon ;  that  the  cattle  strayed  from  the  common,  and  the  defendant  drove  them 
back  as  soon  as  he  could.  It  was  held  a  bad  plea.  Brian,  C.  J.,  says  :  '  It  be- 
hoves him  to  use  his  common  so  that  he  shall  do  no  hurt  to  another  man ;  and  if 
the  land  on  which  he  has  common  be  not  inclosed,  it  behoves  him  to  keep  the 
beast  in  the  common,  and  out  of  the  land  of  any  other.'  He  adds,  when  it 
was  proposed  to  amend,  by  pleading  that  they  were  driven  out  of  the  com- 
mon by  dogs,  that  although  that  might  give  a  right  of  action  against  the 
master  of  the  dogs,  it  was  no  defence  to  the  action  of  trespass  by  the  per- 
son on  whose  land  the  cattle  went.  In  the  recent  case  of  Cox  v.  Bur- 
bid<*e,  Williams,  J.,  says :  '  I  apprehend  the  general  rule  of  law  to  be  per- 
fectly plain.  If  I  am  the  owner  of  an  animal,  in  which,  by  law,  the  right 
of  property  can  exist,  I  am  bound  to  take  care  that  it  does  not  stray  into  the 
land  of  my  neighbor  ;  and  I  am  liable  for  any  trespass  it  may  commit,  and  for 
the  ordinary  consequences  of  the  trespass.  Whether  or  not  the  escape  of  the 
animal  is  due  to  my  negligence  is  altogether  immaterial.'  So  in  the  case  of  May 
f.  Burdett  (9  Q.  B.  101  ;  10  Jur.  692),  the  court,  after  an  elaborate  examination 
of  the  old  precedents  and  authorities,  came  to  the  conclusion,  that  "  a  person 


§  125.  LIABILITY  FOR   FIRES   BY   ENGINES.  461 

it  might  afford  valuable  matter  for  the  profession.19  The  opinion 
will  also  point  out  very  clearly  for  what  matters  railway  compa- 

keeping  a  mischievous  animal,  with  knowledge  of  its  propensities,  is  bound  to 
keep  it  secure  at  his  peril."  And  Lord  Hale  (1  Hale's  P.  C.  430)  states,  that 
where  one  keeps  a  beast,  knowing  its  nature  is  such  that  the  natural  consequence 
of  its  being  loose  is,  that  it  will  harm  men,  the  owner  must  at  his  peril  keep  him 
up  safe  from  doing  hurt ;  for  though  he  use  his  diligence  to  keep  it  up,  if  it  escape 
and  do  harm,  the  owner  is  liable  to  answer  damages ;  though,  as  he  proceeds  to 
show,  he  will  not  be  liable  criminally,  without  proof  of  want  of  care.  In  these 
latter  authorities,  the  point  under  consideration  was  damage  to  the  person,  and 
what  was  decided  was,  that  where  it  was  known  that  hurt  to  the  person  was  the 
natural  consequence  of  the  animal  being  loose,  the  owner  should  be  responsible 
in  damages  for  such  hurt ;  though  where  it  was  not  known  to  be  so  the  owner 
was  not  responsible  for  such  damages ;  but  where  the  damage  is,  like  eating 
grass,  or  other  ordinary  ingredients  in  damage  feasant,  the  natural  consequence 
of  the  escape,  the  rule  as  to  keeping  in  the  animal  is  the  same.  In  Com.  Dig. 
'  Droit,'  M.  2,  it  is  said  :  '  That  if  the  owner  of  200  acres,  in  a  common  moor, 
enfeoffs  B.  of  50  acres,  B.  ought  to  inclose,  at  his  peril,  to  prevent  damage  by 
his  cattle  to  the  other,  150  acres.  For  if  his  cattle  escape  thither,  they  may  be 
distrained  damage  feasant.  So,  the  owner  of  the  150  acres  ought  to  prevent 
his  cattle  from  doing  damage  to  the  50  acres  at  his  peril.'  The  authority  cited 
is  Dy.  372  b.,  where  the  decision  was,  that  the  cattle  might  be  distrained;  the 
inference  from  that  decision,  that  the  owner  was  bound  to  keep  in  his  cattle  at 
his  peril,  is,  we  think,  legitimate ;  and  we  have  the  high  authority  of  Comyns 
for  saying  that  such  is  the  law.  In  the  note  to  F.  N.  B.  128,  which  is  attributed 
to  Lord  Hale,  it  is  said :  '  If  A.  &  B.  have  lands  adjoining,  where  there  is  no  in- 
closure,  the  one  shall  have  trespass  against  the  other  on  an  escape  of  their  beasts 
respectively  (Dy.  372,  Kastal  Ent.  621,  20  Edw.  4,  10),  although  wild  dogs,  &c. 
drive  the  cattle  of  the  one  into  the  lands  of  the  other.'  No  case  is  known  to  us 
on  which,  in  replevin,  it  has  ever  been  attempted  to  plead  in  bar  to  an  avowry 
for  distress  damage  feasant,  that  the  cattle  had  escaped  without  any  negligence 
on  the  part  of  the  plaintiff;  and  surely,  if  that  would  have  been  a  good  plea  in 
bar,  the  facts  must  often  have  been  such  as  would  have  supported  it.  The  au- 
thorities, and  the  absence  of  any  authority  to  the  contrary,  justify  Williams,  J., 
in  saying,  as  he  does,  in  Cox  v.  Burbidge,  that  the  law  is  clear,  that  in  actions 
for  damage  occasioned  by  animals  that  have  not  been  kept  in  by  their  owners, 
it  is  quite  immaterial  whether  the  escape  is  by  negligence  or  not. 

"  As  has  been  already  said,  there  does  not  appear  to  be  any  difference  in 
principle  between  the  extent  of  the  duty  cast  on  him  who  brings  cattle  on  his 
land  to  keep  them  in,  and  the  extent  of  the  duty  imposed  on  him  who  brings  on 
his  land  water,  filth,  or  stenches,  or  any  other  thing  which  will,  if  it  escape,  nat- 
urally do  damage,  to  prevent  their  escaping  and  injuring  his  neighbor  ;  and  the 
case  of  Tenant  v.  Goldwin  is  an  express  authority  that  the  duty  is  the  same,  and 
is  to  keep  them  in  at  his  peril. 

"  As  Martin,  B.,  in  his  judgment  below,  appears  not  to  have  understood  the 


462  LIABILITY    FOR   FIRES   BY   ENGINES.  §  125. 

nics  and  others  are  or  are  not  to  be  held  responsible,  if  there  is 
no  actual  negligence  on  their  part. 

case  in  the  same  manner  as  we  do,  it  is  proper  to  examine  it  in  some  detail.  It 
•was  a  motion  in  arrest  of  judgment  after  judgment  by  default,  and  therefore  all 
that  was  well  pleaded  in  the  declaration  was  admitted  to  be  true.  The  declara- 
tion is  set  out  at  full  length  in  the  report  in  6  Mod.  311.  It  alleged  that  the 
plaintiff  had  a  cellar  which  lay  contiguous  to  a  messuage  of  the  defendant,  '  and 
used  (solebat)  to  be  separated,  and  fenced  from  a  privy  house  of  office,  parcel  of 
the  said  messuage  of  the  defendant,  by  a  thick  and  close  wall,  which  belongs  to 
the  said  messuage  of  the  defendant,  and  by  the  defendant,  of  right,  ought  to  have 
been  repaired  (jure  debuit  reparari),'  yet  he  did  not  repair  it,  and,  for  want  of 
repair,  filth  flowed  into  the  plaintiff's  cellar. 

"The  case  is  reported  by  Salkeld,  who  argued  it,  in  6  Mod.,  and  by  Lord 
Raymond,  whose  report  is  the  fullest.  The  objection  taken  was,  that  there  was 
nothing  to  show  that  the  defendant  was  under  any  obligation  to  repair  the  wall, 
—  that,  it  was  said,  not  being  a  charge  of  common  right,  and  the  allegation,  that 
the  wall  de  jure  debuit  reparari  by  the  defendant,  'being  an  inference  of  law 
which  did  not  arise  from  the  facts  alleged.  Salkeld  argued,  that  this  general 
mode  of  stating  the  right  was  sufficient  in  a  declaration,  and  also  that  the  duty 
aliened  did  of  common  right  result  from  the  facts  stated.  It  is  not  now  material 
to  inquire  whether  he  was  or  was  not  right  on  the  pleading  point.  All  three 
reports  concur  in  saying  that  Lord  Holt,  during  the  argument,  intimated  an 
opinion  against  him  on  that,  but  that  after  consideration  the  court  gave  judg- 
ment for  him  on  the  second  ground. 

"  In  the  report  6  Mod.,  it  was  stated,  '  And  at  another  day,  per  totam  curiam, 
the  declaration  is  good ;  for  there  is  a  sufficient  cause  of  action  appearing  on  it, 
but  not  upon  the  word  "  solebat."  If  the  defendant  has  a  house  of  office  inclosed 
with  a  wall  which  is  his,  he  is  of  common  right  bound  to  use  it  so  as  not  to  annoy 

another The  reason  here  is,  that  one  must  use  his  own,  so  as  thereby  not 

to  hurt  another ;  and,  as  of  common  right  one  is  bound  to  keep  his  cattle  from 
trespassing  on  his  neighbor,  so  he  is  bound  to  use  anything  that  is  his,  so  as  not 

to  hurt  another  by  such  user Suppose  one  sells  a  piece  of  pasture  lying 

open  to  another  piece  of  pasture  which  the  vendor  has,  the  vendee  is  bound  to 
keep  his  cattle  from  running  into  the  vendor's  piece  ;  so  of  dung  or  anything 
else.'  There  is  an  evident  allusion  to  the  same  case  in  Dyer,  as  is  referred  to  in 
Com.  Dig.,  '  Droit'  (M.  2).  Lord  Raymond,  in  his  report  (2  Ld.  Raym.  1089), 
says  :  '  The  last  day  of  term,  Holt,  C.  J.,  delivered  the  opinion  of  the  court 
that  the  declaration  was  sufficient.  He  said  that  upon  the  face  of  the  declara- 
tion there  appeared  a  sufficient  cause  of  action  to  entitle  the  plaintiS"  to  have  his 
judgment ;  that  they  did  not  go  upon  the  solebat  or  the  jure  debuit  reparari,  as  if 
it  were  enough  to  say  that  the  plaintiff  had  a  house  and  the  defendant  had  a 
wall,  and  he  ought  to  repair  the  wall ;  but  if  the  defendant  has  a  house  of 
office,   and  the  wall  which  separates  the  house  of  office  from  the   plaintiff's 

house  is  all  the  defendant's,   he  is  of  common  right  bound  to  repair  it 

The  reason  of  this  case  is  upon   this  account,  that  every  one  must  so   use 


§  125.  LIABILITY   FOR   FIRES   BY   ENGINES.  463 

his  own  as  not  to  do  damage  to  another ;  and  as  every  man  is  bound  so  to 
look  to  his  cattle  as  to  keep  them  out  of  his  neighbor's  ground,  so  that  he  may 
receive  no  damage ;  so  he  must  keep  in  the  filth  of  his  house  of  office,  so  that  it 

may  not  flow  in  upon  and  damnify  his  neighbor So  if  a  man  has  two  pieces 

of  pasture  which  lie  open  to  one  another,  and  sells  one  piece,  the  vendee  must 
keep  in  his  cattle,  so  as  they  shall  not  trespass  upon  the  vendor.  So  a  man 
shall  not  lay  his  dung  so  high  as  to  damage  his  neighbor  ;  and  the  reason  of  these 
cases  is,  because  every  man  must  so  use  his  own  as  not  to  damnify  another.' 
Salkeld,  who  had  been  counsel  in  the  case,  reports  the  judgment  much  more  con- 
cisely, but  to  the  same  effect.  He  says  :  '  The  reason  he  gave  for  his  judgment 
was  because  it  was  the  defendant's  wall  and  the  defendant's  filth  ;  and  he  was 
bound  of  common  right  to  keep  his  wall  so  as  his  filth  might  not  damnify  his 
neighbor ;  and  that  it  was  a  trespass  on  his  neighbor,  as  if  his  beast  should 
escape,  or  one  should  make  a  great  heap  on  the  border  of  his  ground,  and  it 
should  tumble  and  roll  down  upon  his  neighbor's,  ....  he  must  repair  the  wall 
of  his  house  of  office  ;  for  he  whose  dirt  it  is  must  keep  it  that  it  may  not  tres- 
pass.' It  is  worth  noticing  how  completely  the  reason  of  Lord  Holt  corresponds 
with  that  of  Brian,  C.  J.,  in  the  cases  already  cited  in  20  Edw.  4.  Martin,  B.,  in 
the  court  below,  says,  that  he  thinks  this  was  a  case  without  difficulty,  because 
the  defendant  had,  by  letting  judgment  go  by  default,  admitted  his  liability  to 
repair  the  wall,  and  that  he  cannot  see  how  it  is  an  authority  for  any  case  in 
which  no  such  liability  is  admitted.  But  a  perusal  of  the  report  will  show  that 
it  was  because  Lord  Holt  and  his  colleagues  thought  (no  matter  for  this  purpose 
whether  rightly  or  wrongly)  that  the  liability  was  not  admitted  that  they  took  so 
much  trouble  to  consider  what  liability  the  law  would  raise  from  the  admitted 
facts ;  and  it  does,  therefore,  seem  to  us  to  be  a  very  weighty  authority  in  sup- 
port of  the  position,  that  he  who  brings  and  keeps  anything,  no  matter  whether 
beasts,  or  filth,  or  clean  water,  or  a  heap  of  earth,  or  dung,  on  his  premises,  must 
at  his  peril  prevent  it  from  getting  on  his  neighbor's,  or  make  good  all  the  damage 
which  is  the  .natural  consequence  of  its  doing  so.  No  case  has  been  found  in 
which  the  question  as  to  the  liability  for  noxious  vapors  escaping  from  a  man's 
work  by  inevitable  accident  has  been  discussed,  but  the  following  case  will  illus- 
trate it.  Some  years  ago  several  actions  were  brought  against  the  occupiers  of 
some  alkali  works  at  Liverpool,  for  the  damage  alleged  to  be  caused  by  the 
chlorine  fumes  of  their  works.  The  defendants  proved  that  they,  at  great  ex- 
pense, erected  contrivances  by  which  the  fumes  of  chlorine  were  condensed,  and 
sold  as  muriatic  acid ;  and  they  called  a  great  body  of  scientific  evidence  to  prove 
that  this  apparatus  was  so  perfect  that  no  fumes  possibly  could  escape  from  the 
defendant's  chimneys.  On  this  evidence,  it  was  pressed  upon  the  jury  that  the 
plaintiff's  damage  must  have  been  due  to  some  of  the  numerous  other  chimneys 
in  the  neighborhood ;  the  jury,  however,  being  satisfied  that  the  mischief  was 
occasioned  by  chlorine,  drew  the  conclusion  that  it  had  escaped  from  the  defend- 
ants' works  somehow,  and  in  each  case  found  for  the  plaintiff.  No  attempt  was 
made  to  disturb  these  verdicts,  on  the  ground  that  the  defendants  had  taken 
every  precaution  which  prudence  or  skill  could  suggest  to  keep  those  fumes  in, 
and  that  they  could  not  be  responsible  unless  negligence  were  shown  ;  yet  if  the 


464  LIABILITY   FOR   FIRES   BY   ENGINES.  §  125. 

law  be  as  laid  down  by  the  majority  of  the  Court  of  Exchequer,  it  would  have 
been  a  very  obvious  defence.  If  it  had  been  raised,  the  answer  would  probably 
have  been  that  the  uniform  course  of  pleading  in  actions  on  such  nuisances  is  to 
say  that  the  defendant  caused  the  noisome  vapors  to  arise  on  his  premises,  and 
suffered  them  to  come  on  the  plaintiff's,  without  stating  there  was  any  want  of 
care  or  skill  in  the  defendant ;  and  that  the  case  of  Tenant  v.  Goldwin  showed 
that  this  was  founded  on  the  general  rule  of  law,  that  he  whose  stuff  it  is  must 
keep  it  that  it  may  not  trespass.  There  is  no  difference  in  this  respect  between 
chlorine  and  water ;  both  will,  if  they  escape,  do  damage,  —  the  one  by  scorch- 
ing and  the  other  by  drowning  ;  and  he  who  brings  them  there,  must  at  his  peril 
see  that  they  do  not  escape  and  do  that  mischief.  What  is  said  by  Gibbs,  C.  J., 
in  Sutton  v.  Clarke,  though  not  necessary  for  the  decision  of  the  case,  shows  that 
that  very  learned  judge  took  the  same  view  of  the  law  that  was  taken  by  Lord 
Holt.  But  it  was  further  said  by  Martin,  B.,  that  when  damage  is  done  to  per- 
sonal property,  or  even  to  the  person,  by  collision,  either  upon  land  or  at  sea, 
there  must  be  negligence  in  the  party  doing  the  damage,  to  render  him  legally 
responsible,  and  this  is  no  doubt  true  ;  and,  as  was  pointed  out  by  Mr.  Mellish 
during  his  argument  before  us,  this  is  not  confined  to  cases  of  collision,  for  there 
are  many  cases  in  which  proof  of  negligence  is  essential ;  as,  for  instance,  where 
an  unruly  horse  gets  on  the  footpath  of  a  public  street,  and  kicks  a  passenger 
(Hammack  v.  White)  ;  or  where  a  person  in  a  dock  is  struck  by  the  falling  of  a 
bale  of  cotton  which  the  defendants' servants  are  lowering  (Scott  v.  The  London 
Dock  Company),  and  many  other  similar  cases  may  be  found.  But  we  think 
these  cases  distinguishable  from  the  present.  Traffic*  on  the  highways,  whether 
by  land  or  sea,  cannot  be  conducted  without  exposing  those  whose  persons  or 
property  are  near  it  to  some  inevitable  risk ;  and  that  being  so,  those  who 
go  on  the  highway,  or  have  their  property  adjacent  to  it,  may  be  held  to  do  so 
subject  to  their  taking  upon  themselves  the  risk  of  suffering  from  that  inevitable 
danger ;  and  persons  who,  by  the  license  of  the  owner,  pass  near  to  warehouses 
where  goods  are  being  raised  or  lowered,  certainly  do  so  subject  to  the  inevitable 
risk  of  accident.  In  neither  case,  therefore,  can  they  recover  without  proof  of 
want  of  care  or  skill  occasioning  the  accident ;  and  it  is  believed,  that  all  the 
cases  in  which  inevitable  accident  has  been  held  an  excuse  for  what  prima  facie 
was  a  trespass,  can  be  explained  on  the  same  principle,  viz.  that  the  circum- 
stances were  such  as  to  show  that  the  plaintiff  had  taken  the  risk  upon  himself. 
But  there  is  no  ground  for  saying  that  the  plaintiff  here  took  upon  himself  any 
risk  arising  from  the  uses  to  which  the  defendants  should  choose  to  apply  their 
land.  He  neither  knew  what  there  might  be,  nor  could  he  in  any  way  control  the 
defendants  or  hinder  their  building  what  reservoirs  they  liked,  and  storing  up  in 
them  what  water  they  pleased,  so  long  as  the  defendants  succeeded  in  preventing 
the  water  which  they  there  brought  from  interfering  with  the  plaintiff's  property. 

"  The  view  which  we  take  of  the  first  point  renders  it  unnecessary  to  consider 
whether  the  defendants  would  or  would  not  be  responsible  for  the  want  of  care 
and  skill  in  the  persons  employed  by  them,  under  the  circumstances  stated  in 
this  case. 

"  We  are  of  opinion  that  the  plaintiff  is  entitled  to  recover  ;  but  as  we  have 


§  126., 


INJURIES   TO   DOMESTIC   ANIMALS. 


465 


*CHAPTER    XVIII. 


INJURIES    TO    DOMESTIC    ANIMALS. 


1 .  Company  not  liable  unless  bound  to  la  <}> 

the  animals  off  the  track. 

2.  Some  cases  go  even  further,  in  favor  of 

the  company. 

3.  Not  liable  where  the  animals  were  wrong- 

fully abroad. 

4.  Not  liable  for  injury  to  animals,  on  land 

where  company  not  bound  to  fence. 

5.  Where  company  bound  to  fence  are  prima 

facie  liable  for  injury  to  cattle. 

6.  But  if  owner  is  in  fault,  company  not 

liable. 

7.  In  such  case  company  only  liable  for  gross 

neglect  or  wilful  injury. 

8.  Owner  cannot  recover,  if  he  suffer  his 

cattle  to  go  at  large  near  a  railway. 

9.  Company  not  liable  in  such  case,  unless 

they  might  have  avoided  the  injury. 
Where  company   are   required  to  keep 
gates  closed,  are  liable  to  any  party  in- 
jured by  omission. 
Opinion  of  Gibson,  Justice,  on  this  subject. 

12.  17.  Not   liable  for  consequences  of  the 

proper  use  of  their  engines. 

13.  Questions  of  negligence  ordinarily  to  be 

determined  by  jury. 

14.  But  this  is  true  only  where  the  testimony 

leaves  the  question  doubtful. 


10 


11 


15.  Actions  may  be  maintained  sometimes,  for 
remote  consequences  oj'  negligence. 

16-18.  Especially  where  a  statutory  duty  is 
neglected  by  company. 

19.  Tlte  question  of  negligence  is  one  for  the 

jury. 

20.  One  who  suffers  an  animal  to  go  at  large 

can  only  recover  for  gross  neglect. 

21.  Testimony   of   experts    receivable   as   to 

management  of  engines. 

22.  One  who  suffers  cattle  to  go  at  large  must 

take  the  risk. 

23.  77ie  company  owe  a  primary  duty  to  pas- 

sengers, $-c. 

24.  In  Maryland  company  liable  xmless  for 

unavoidable  accident. 

25.  In  Indiana  common-law  rule  prevails. 

26.  In  Missouri,  modified  by  statute. 

27.  In  California  cattle  may  lawfully  be  suf- 

fered to  go  at  large. 

28.  29.  Abstract  of  late  cases  in  Illinois. 

30.  The  weight  of  evidence  and  of  presump- 

tion. 

31.  Company  not  liable  except  for  negligence. 

32.  Company  must  use  all  statutory  and  other 

precautions. 


§  126.  1.  The  decisions  upon  the  subject  of  injuries  to  domes- 
tic animals  by  railways  are  very  numerous,  but  may  be  reduced 
to  a  comparatively  few  principles.  Where  the  owner  of  the  ani- 
mals is  unable  to  show  that  as  against  the  railway  they  were 
properly  upon  the  track,  or,  in  other  words,  that  it  was  through 
the  fault  of  the  company  that  they  were  enabled  to  come  upon 

not  heard  any  argument  as  to  the  amount,  we  are  not  able  to  give  judgment  for 
what  damages.  The  parties,  probably,  will  empower  their  counsel  to  agree  on 
the  amount  of  damages ;  should  they  differ  on  the  principle,  the  case  may  be 
mentioned  again.     Judgment  for  the  plaintiff." 

VOL.  I.  30  *361 


466  INJURIES   TO    DOMESTIC    ANIMALS.  §  126 

the  road,  the  company  are  not  in  general  liable,  unless,  after  they 
discovered  the  animals,  they  might,  by  the  exercise  of  proper 
care  and  prudence,  have  prevented  the  injury. 

The  fact  of  killing  an  animal  of  value  by  the  company's  en- 
gines, is  not  primd  facie  evidence  of  negligence  on  their  part.1 
A  distinction  is  here  taken  by  the  court  between  injuries  to  per- 
manent property  situated  along  the  line  of  the  railway,  as  injury 
to  buildings  by  fires  communicated  by  the  company's  engines, 
and  damage  to  cattle  which  are  constantly  changing  place,  there 
being  more  evidence  of  fault  on  the  part  of  the  company  from 
the  mere  occurrence  of  the  injury  in  the  former  than  in  the  lat- 
ter case.2 

2.  Most  of  the  better  considered  cases  certainly  adopt  this 
view  of  the  subject,  and  some  perhaps  go  even  further  in  favor 
of  exempting  the  company  from  liability,  where  they  were  not 
originally  in  fault,  and  the  animals  were  exposed  to  the  injury 
through  the  fault  of  the  owner,  mediately  or  immediately. 

3.  For  instance,  if  the  animal  escape  into  the  highway,  and 
thus  get  upon  the  track  of  the  railway  where  it  intersects  with 
the  highway,  and  is  killed,  the  company  are  not  liable.3  And  if 
the  *  animals  are  trespassing  upon  a  field,  and  stray  from  the 
field,  upon  the  track  of  the  railway,  through  defect  of  fences, 
which  the  company  are  bound  to  maintain,  as  against  the  owner 
of  the  field,  and  are  killed,  the  company  are  not  liable,  either  at 
common  law  or  under  the  English  statute,4  or  upon  the  ground 
that  the  defendant  exercised  a  dangerous  trade.  The  obligation 
to  make  and  maintain  fences,  both  at  common  law  and  under 
the  statute,  applies  only  as  against  the  owners  or  occupiers  of 
the  adjoining  close.5 

1  Scott  v.  W.  &  R.  Railw.,  4  Jones  Law,  432. 

a  See  note  1,  and  also  Ind.  &  Cincin.  Railw.  v.  Caldwell,  9  Ind.  R.  397. 

*  Towns  v.  Cheshire  Railw.,  1  Foster,  363 ;  Sharrod  v.  London  and  N.  W. 
Railw.,  4  Exch.  580.  Halloran  v.  New  Y.  &  Harlem  Railw.,  2  E.  D.  Smith, 
257.  In  Maryland  it  was  held  that  a  statute  for  the  protection  of  animals  and 
stock  did  not  include  negro  slaves.  Scaggs  v.  Bait.  &  Wash.  Railw.,  10  Md. 
R.  268. 

4  8  &  8  Vict.  ch.  20,  §  68. 

5  Ricketts  v.  The  East  and  West  India  Docks  and  Birrn.  J.  Railw.,  12  Eng. 
L.  &  Eq.  520.  The  same  point  is  ruled  in  the  following  cases.  Jackson  v.  Rut. 
&  Bur.  Railw.,  25  Vt.  R.  150.     See  also  cases  referred  to  in  §§  166,  167.     And 

*362 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  467 

4.  So  where  the  statute  requires  railways  to  fence  their  road, 
where  the  same  passes  through  "  inclosed  or  improved  lands,"  if 
injury  happen  to  another's  cattle  through  want  of  fences,  upon 
common  or  uninclosed  land,  it  is  not  legally  imputable  to  the 
negligence  of  the  company.6 

5.  But  if  the  railway  are  bound  to  maintain  fences,  as  against 
the  owner  of  the  cattle,  and  they  come  upon  the  road  through 
defect  of  such  fences,  and  are  injured,  the  company  are,  in  gen- 
eral, liable  without  further  proof  of  negligence.7 

it  was  held,  Man.  Sh.  &  Lincolnshire  Railw.  v.  Wallis,  25  Eng.  L.  &  Eq.  373, 
that  a  railway  are  not  bound  to  fence  against  cattle  straying  upon  a  highway 
running  along  the  railway,  and  that  they  are  not  liable  for  an  injury  sustained 
by  cattle  in  getting  from  such  highway  upon  the  railway,  through  a  defect  of  the 
fences  maintained  by  the  company  ;  although  the  cattle  strayed  upon  the  high- 
way without  any  fault  of  the  owner.  Brooks  v.  N.  Y.  &  Erie  Railw.,  13  Barb. 
594.  But  in  the  Midland  Railw.  v.  Daykin,  33  Eng.  L.  &  Eq.  19?,  it  was  held, 
that  where  a  colt  strayed  from  a  field,  upon  a  public  road,  abutting  upon  which 
was  a  yard  not  fenced  from  a  railway,  the  gate  of  which  was,  through  the  neglect 
of  the  company's  servants,  left  open,  and,  while  the  colt  was  being  driven  back 
to  the  field  by  the  servants  of  the  owner,  it  escaped  into  the  yard,  and  thence 
upon  the  railway,  where  it  was  killed  by  a  passing  train,  the  company  were 
liable.  Jervis,  Ch.  J.,  says  :  "  I  can  see  no  room  to  doubt  that  that  was  a  lawful 
use  of  the  highway."  But  in  Ellis  v.  London  &  Southwestern  Railw.,  2  H.  &  N. 
424,  where  a  railway  company  constructed  their  road  across  a  public  footway,  in 
such  a  manner  that  no  security  against  injury  to  passersfcon  the  way  was 
afforded  within  the  provisions  of  the  English  statute,  8  &  9  Yic.  ch.  20,  §§  46,  61, 
68,  by  means  of  a  bridge  or  stile,  but  the  company  erected  high  gates  which 
obstructed  the  footway  and  gave  the  key  to  plaintiff's  servant,  which  had  been 
lost  and  the  gates  left  open,  without  notice  to  the  railway  company,  whereby 
the  plaintiff's  colts  escaped  from  his  lands  adjoining,  and  came  upon  the  railway 
and  were  killed  by  a  passing  train,  the  jury  having  found  that  the  plaintiff,  by 
his  own  negligence  and  that  of  his  servants  had  contributed  to  the  accident,  it 
was  held  he  could  not  recover,  notwithstanding  the  omission  of  duty  by  the  com- 
pany. 

6  Perkins  v.  Eastern  Railw.  and  the  Boston  &  M.  Railw.,  29  Maine  R.  307. 
And  if  by  the  common  usage  cattle  have  the  right  to  run  updh  uninclosed  land, 
the  owner  incurs  the  risk  of  all  accidents.  Knight  v.  Abert,  6  Barr,  4  72;  Phil. 
&  Germ.  Railw.  v.  Wilt,  4  Whart.  143. 

7  Suydam  v.  Moore,  8  Barb.  358 ;  AValdron  v.  Rensselaer  &  Sar.  Railw.,  8 
Barb.  390 ;  Horn  v.  Atlantic  &  St.  Lawrence  Railw.,  35  N.  H.  R.  169 ;  s.  c.  36 
Id.  440  ;  Smith  v.  Eastern  Railw.,  35  N.  H.  R.  356.  But  where  the  cattle  come 
upon  the  railway,  at  a  point  not  proper  to  be  fenced,  as  at  the  intersection  of  a 
highway,  or  at  a  mill  yard,  the  company  are  not  liable  for  injury  to  them,  unless 


468  INJURIES   TO   DOMESTIC    ANIMALS.  §  126. 

6.  But  where  the  statute  imposes  the  duty  of  building  fence 
upon  the  railway,  they  may  lawfully  stipulate  with  the  land-own- 
ers *  to  maintain  it,  and  if  such  land-owner  suffer  his  cattle  to  be 
where  they  may  come  upon  the  railway  without  building  the 
fence,  he  cannot  recover  of  the  company.8  So,  too,  if  the  plain- 
tiff leave  down  the  bars  at  a  cattle  crossing,  whereby  his  cattle 
go  upon  the  railway  and  are  killed,  he  cannot  recover.9 

7.  And  where  the  cattle  go  upon  a  railway  through  defect  of 
fences,  which  the  owner  is  bound  to  maintain,  and  suffer  dam- 
age, the  owner  has  no  claim  upon  the  company,  unless,  perhaps, 
for  what  has  sometimes  been  denominated  gross  negligence,  or 
wilful  injury,10  for  in  such  cases  the  cattle  are  regarded  as  tres- 
passers,10 and  the  owner  the  cause  of  the  injury  sustained,  unless 
the  railway  might  have  prevented  it. 

But  where  there  was  no  reasonable  ground  to  suppose  that  the 
portion  of  fence  which  it  was  the  duty  of  the  company  to  build 
would  have  protected  the  animals,  and  the  owner  was  shown  to 
have  been  guilty  of  negligence  in  not  taking  care  of  them,  it  was 

the  plaintiff  prove  some  fault  on  the  part  of  the  company's  servants,  besides  the 
want  of  fences.  Indianapolis  &  C.  R.  v.  Kinney,  8  Ind.  R.  402 ;  Lafayette  & 
Ind.  Railw.  v.  Shriner,  6  Ind.  R.  141. 

8  Tower  v.  Prov.  &  Wor.  Railw.,  2  Rhode  Island  R.  404,  411;  Clark  v.  Sy. 
&  Utica  Railw.,  ^L  Barb.  112;  C.  H.  &  D.  Railw.  v.  Waterson,  4  Ohio  St. 
424.  So,  also,  where  the  duty  of  maintaining  the  fences  along  the  railway  is 
upon  the  land-owner,  and  it  is  burned  down  by  fire,  communicated  by  the  com- 
pany's engines,  and  he  suffers  his  fields  to  remain  unfenced,  whereby  bis  cattle  go 
upon  the  track,  and  are  killed,  he  cannot  recover.  If  the  company  are  in  fault, 
and  liable  to  damages  in  regard  to  the  fire,  this  does  not  oblige  them  to  rebuild 
the  fence,  nor  will  it  justify  the  plaintiff  in  suffering  his  fields  to  remain  unfenced 
except  at  his  own  peril.     Terry  v.  New  York  Central  Railw.,  22  Barb.  574. 

9  Waldron  v.  Portland,  S.  &  P.  Railw.,  35  Maine  R.  422. 

10  Tonawanda  Railw.  v.  Munger,  5  Denio,  255  ;  s.  c.  4  Conist.  349  ;  Clark  v. 
Syracuse  &  Utica  Railw.,  1 1  Barb.  112;  Williams  v.  Mich.  Central  Railw.,  2 
Mich.  R.  259.  In  'this  case  the  horses  were  wrongfully  upon  the  railway,  and 
the  court  say  "  they  (the  company)  cannot  be  held  liable  for  any  accidental  in- 
jury which  may  have  occurred,  unless  the  lawful  right  of  running  the  train  was 
exercised  without  a  proper  degree  of  care  and  precaution,  or  in  an  unreasonable 
or  unlawful  manner."  See  also  Garris  v.  Portsmouth  &  Roanoke  Railw.,  2  Ired. 
324;  C.  H.  &  D.  Railw.  v.  Waterson,  4  Ohio  St.  424;  C.  C.  &  C.  Railw.  v. 
Elliott,  4  Ohio  St.  474;  New  Albany,  &c.  Railw.  v.  McNamara,  11  Ind.  R. 
543. 

*363 


§  126.  INJURIES   TO  DOMESTIC   ANIMALS.  469 

held  there  could  be  no  recovery,  since  his  negligence  was  the 
direct  and  proximate  cause  of  the  injury.11 

8.  And  it  was  held  to  be  gross  negligence  for  the  owner  of 
cattle  to  suffer  them  to  go  at  large,  in  the  vicinity  of  a  railway, 
whether  the  same  was  fenced  or  not.12 

9.  It  has  been  held  not  to  be  sufficient  in  such  cases  to  charge 
the  company,  to  show  that  they  were  running  at  an  unreason- 
able rate  of  speed,  or  without  proper  care  in  other  respects.13 
The  only  question  in  such  case  is,  we  apprehend,  whether  the 
company,  after  discovering  the  peril  of  the  animals,  might  have 
so  conducted  as  to  haveNprevented  the  injury.13  The  same  rule 
obtains,  which  does  in  actions  for  personal  injuries,  where  there 
is  fault  in  both  parties. 

This  subject  is  extensively  discussed  in  Vicksburg  and  Jack- 
son Railway  v.  Patton,14  and  the  doctrine  enunciated,  that  the 
owner  of  domestic  animals  not  of  a  dangerous  character,  may 
lawfully  suffer  them  to  depasture  upon  the  uninclosed  commons, 
and  if  they  wander  upon  the  premises  of  others  not  inclosed,  the 
owner  of  the  animals  is  not  liable  for  any  damage  in  conse- 
quence. 

But  a  railway,  crossing  such  common,  has  the  same  right  to 
its  unobstructed  use  as  the  owner  of  cattle,  and  they  may  law- 

11  Joliet  &  Northern  Ind.  Railw.  v.  Jones,  20  Illinois  R.  221. 

12  Marsh  v.  N.  Y.  &  Erie  Railw.,  14  Barb.  364  ;  Talmadge  v.  Rennsselaer  & 
Saratoga  Railw.,  13  Barb.  493  ;  Louisville  &  Frankfort  Railw.  v.  Milton,  14  B. 
Monroe,  75.  This  is  where  the  plaintiff  below  suffered  the  company  to  build  a 
railway  through  his  field  without  stipulating  that  they  should  fence  the  track, 
and  his  cattle  running  upon  the  track  while  depasturing  in  the  field  were  killed, 
and  the  court  held  the  company  are  not  liable,  "  unless  the  injury  could  have 
been  avoided  with  reasonable  care."  But  in  Housatonic  Railw.  v.  Waterbury,  23 
Conn.  R.  101,  it  was  held  that  in  such  case  the  company  hold  their  easement 
subject  to  the  land-owner's  right  to  cross  and  recross,  to  and  from  the  different 
sections  of  his  farm,  provided  the  right  is  reasonably  exercised,  and  that  the 
land-owner  is  not  chargeable  with  negligence  in  letting  his  cattle  run  on  his  land 
unfenced,  unless  he  knew  they  were  accustomed  to  keep  near  the  track,  thus  im- 
posing a  duty  of  watchfulness  on  both  parties. 

13  Vandergrift  v.  Rediker,  2  N.  J.  R.  (Zab.)  185;  Clark  v.  Sy.  &  Utica  Railw., 
11  Barb.  112;  Williams  v.  Mich.  Central  Railw.,  2  Mich.  R.  259;  Lafayette  & 
Ind.  Railw.  v.  Shriner,  6  Porter  (Ind.),  141.  Here  it  is  held  the  company  are 
liable  for  gross  negligence,  even  where  the  cattle  are  wrongfully  upon  the  road. 

14  31  Miss.  R.  156 ;  Gorman  v.  Pacific  Railw.,  26  Mo.  R.  441. 

*364 


470  INJURIES   TO   DOMESTIC  ANIMALS.  §  126. 

fully  run  their  cars  at  all  times,  and  at  all  lawful  rates  of  speed  ; 
but  if  their  own  track  be  uninclosed  and  cattle  liable  to  wander 
upon  it,  the  company  should  have  proper  regard  to  so  running 
their  trains  as  not  to  injure  them.  And  if  cattle  are  injured 
through  any  default  of  the  company,  it  is  liable. 

It  is  the  duty  of  the  company  to  keep  their  engines  in  good 
repair,  and  to  have  a  sufficient  number  of  servants  to  manage 
their  trains  with  safety ;  and  if  through  any  default  in  any  of 
these  duties  the  cattle  of  another  are  injured,  it  will  be  liable. 

It  was  held  in  this  case,  contrary  to  the  general  course  of 
practice,  that  it  may  be  proved  that  the  general  character  of  the 
engineer  in  charge  of  the  train  was  that  of  a  reckless  and  un- 
trustworthy agent.  And  it  is  here  said  that  the  company  are 
liable  to  exemplary  damages  for  such  an  injury  occurring  through 
the  gross  negligence  or  wanton  misconduct  of  its  agents  ;  both  of 
which  propositions  seem  not  entirely  reconcilable  with  the  gen- 
eral course  of  decision. 

10.  And  it  has  been  held  that  where  the  statute,  in  general 
terms,  requires  railways  to  keep  gates  at  road-crossings  con- 
stantly closed,  that  one  whose  horses  leaped  from  his  field  into 
the  highway,  and  then  strayed  upon  the  railway,  by  reason  of 
the  gates  not  being  kept  constantly  closed,  and  were  killed, 
might  recover  of  the  company.15  In  such  case  it  was  held,  that 
as  to  the  company  the  horses  were  lawfully  on  the  highway,  as 
the  provision  in  the  statute  in  regard  to  keeping  the  gates  shut 
was  intended  for  the  protection  of  all  cattle,  horses,  &c,  passing 
along  the  highway,  whether  strayed  there  or  not,  unless  perhaps 
when  voluntarily  suffered  to  run  at  large  in  the  highway.  And 
the  duty  of  keeping  cattle-guards  at  road-crossings  has  been 
considered  to  extend  to  the  protection  of  all  animals  in  the  street, 
and  to  be  a  duty  which  the  railway  owe  the  public  generally, 
and  not  merely  the  owners  of  cattle  driven  along  the  highway, 
which,  in  strictness,  is  the  only  condition  in  which  cattle  are 
rightfully  in  the  highway,  at  common  law.16 

15  Fawcett  v.  York  &  North  M.  Railw.,  2  Eng.  L.  &  Eq.  289.  But  it  is  a 
question  for  the  jury,  under  the  circumstances,  whether  they  believe  the  gates 
were  left  open  by  the  fault  of  the  company's  servants  or  the  tort  of  a  stranger. 
Walford,  179,  citing  two  Nisi  Prius  cases  (1842),  (1845). 

1S  Trow  v.  The  Vermont  Central  Railw.,  24  Vt.  R.  487.     And  in  Railroad  v. 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  471 

11.  Iii  the  New  York  &  Erie  Railway  v.  Skinner,17  Gibson, 
J.,  lays  *  down  the  rule  in  the  broadest  terms,  that  railways,  in- 

Skinner,  19  Penn.  St.  298,  it  is  said,  that  if  cattle  are  suffered  to  go  at  large, 
and  are  killed  or  injured  on  a  railway,  the  owner  has  no  remedy  against  the 
company,  and  may  himself  be  made  liable  for  damage  done  by  them  to  the 
company  ;  and  it  is  unimportant  whether  the  owner  knew  <Jf  the  jeopardy  of 
the  cattle  ;  and  that  it  is  error  to  submit  the  question  of  negligence  to  the  jury, 
unless  there  is  some  evidence  of  such  fact. 

In  a  late  case  in  the  Circuit  Court  of  Virginia,  in  error  from  the  County 
Court,  The  Richmond  &  Petersburgh  Railw.  v.  Mrs.  Jones,  this  subject  is  dis- 
cussed at  length,  6  Am.  Law  Reg.  346.  It  appeared,  upon  the  trial  of  the  case 
before  the  jury,  that  the  company  had  been  assessed  in  damages  to  the  land- 
owners along  the  line  of  their  road,  in  consequence  of  additional  fence  being 
required,  by  reason  of  the  construction  of  the  railway.  The  animal,  for  killing 
which  the  suit  was  brought,  was  found  dead  near  the  crossing  of  the  highway 
and  railway,  in  such  a  state  as  to  show  that  it  had  been  killed  by  collision  with 
the  company's  engines  very  near  the  crossing.  The  plaintiff  below  suffered  the 
beast  to  run  at  large  and  graze  upon  the  uninclosed  lands  in  the  neighborhood 
of  the  railway,  her  own  land  not  lying  in  immediate  contact  with  the  line  of 
the  railway.  The  case,  not  being  of  sufficient  amount  to  authorize  its  being 
carried  to  the  Court  of  Appeals,  the  decision  was  final,  and  the  case  is  discussed 
at  length  upon  the  principles  involved,  and  the  following  points  ruled  : 

Prima  facie  the  company  are  not  liable,  even  when  cattle  are  killed  at  a  road- 
crossing.  Both  the  owner  of  the  cattle  and  the  company,  in  such  case,  being 
apparently  in  the  exercise  of  their  legal  rights,  the  law  presumes  no  breach  of 
duty,  and  thus  imposes  upon  the  party  who  alleges  such  breach  the  burden  of 
proof.  To  entitle  the  owner  in  such  case  to  recover  of  the  company,  he  must 
prove  want  of  care  or  skill  on  the  part  of  the  company. 

But  where  cattle  are  killed  along  the  line  of  the  road,  and  not  at  a  road- 
crossing,  the  case  is  much  less  favorable  to  the  owner,  inasmuch  as  the  company, 
having  paid  the  expense  of  fencing  to  the  land-owners  adjoining,  are  entitled 
to  have  cattle  excluded  from  their  track.  And  the  statute  depriving  the  com- 
pany of  an  action  against  the  owner  of  cattle  for  damages,  caused  by  their 
straying  upon  the  road,  does  not  render  it  lawful  for  cattle  to  be  allowed  to  go 
there  unrestrained  by  fences. 

17  19  Penn.  St.  298 ;  s.  c.  1  Ajn.  Law  Reg.  97.  But  in  Danner  v.  South  Carolina 
Railw.,  4  Rich.  329,  it  was  held,  that  the  fact  that  cattle  pasturing  on  one's  own 
land  are  injured  by  a  railway  company's  trains,  is  prima  facie  evidence  of  the 
liability  of  the  company,  and  that  the  company  could  only  excuse  themselves, 
by  showing,  from  the  manner  the  injury  occurred,  that  they  were  not  guilty  of 
negligence.  And  that  for  this  purpose  the  company  must  show,  not  only  that 
the  injury  was  not  intentional,  but  that  it  was  unavoidable,  and  occurred  with- 
out the  least  fault  on  the  part  of  the  engineer.  But  to  the  maintenance  of  an 
action  on  the  case  for  such  injury,  it  is  requisite  to  show,  that  it  arose  from 
the  negligence  of  the  company,  and  if  it  appear  to  have  been  wilful,  or  acci- 

*365 


472  INJURIES   TO   DOMESTIC   ANIMALS.  §  126. 

dependent  of  statutory  requisitions,  and  as  against  the  adjoining 
land-owners,  are  under  no  duty  whatever  to  fence  their  road,  nor 
are  they  bound  to  run  with  any  reference  whatever  to  the  possi- 
bility of  cattle  getting  upon  the  track.  Every  man  is  bound,  at 
his  peril,  to  keep  his  cattle  off  the  track,  and  if  he  do  not,  and 
they  suffer  damage,  he  has  no  claim  upon  the  company,  or  their 
servants,  and  is  liable  for  damages  done  by  them  to  the  company 
or  its  passengers.  The  opinion  contains  many  sensible  sugges- 
tions, and  is  curious  for  the  enthusiasm  and  zeal  manifested  by 
one  already  beyond  the  ordinary  limit  of  human  life.  These 
views  have  sometimes  been  adopted  in  the  jury  trials  in  other 
states,  and  as  reported  in  the  newspapers,  in  a  recent  case  in 
Wisconsin,  Prichard  v.  The  La  Crosse  &  Milwaukie  Railway. 
But  they  are  certainly  not  maintained  to  the  full  extent,  in  any 
country  where  the  maxim  sic  utere  tuo  ut  alienum  non  laedas 

dental,  this  action  will  not  lie.  This  seems  to  be  assuming  the  extreme  opposite 
of  the  case  last  cited.  The  truth  will  be  found  to  lie  between  them,  doubtless. 
But  the  rule  in  Danner's  case  does  not  apply  where  the  animal  killed  is  a  dog. 
Wilson  v.  Railw.  Company,  10  Rich.  (S.  C.)  52.  But  it  does  apply  to  the  killing 
of  a  horse  at  night.     Murray  v.  Same,  Id.  227. 

By  the  law  of  South  Carolina,  cattle  must  be  fenced  out,  not  fenced  in.  The 
entry,  therefore,  of  cattle,  as  a  horse,  upon  an  uninclosed  railway  track,  is  no  tres- 
pass. Murray  v.  Railroad  Company,  Id.  227.  And  it  was  held,  that  the  owner 
of  a  horse,  permitted  to  roam  at  large  over  uninclosed  land,  is  not  guilty  of  such 
negligence  as  will  embarrass  his  recovery,  should  the  horse  be  killed  by  the  neg- 
ligence of  another.     lb. 

The  statute  in  Georgia,  1847,  makes  railway  companies  liable  for  all  damages 
done  to  live-stock  or  other  property.  But  it  was  held  they  were  not  liable  when 
the  damage  was  caused  by  the  design  or  negligence  of  the  owner.  Macon  &  W. 
Railw.  v.  Davis,  13  Ga.  R.  68.  And  in  New  York  it  is  held,  that,  their  general 
statute,  making  railway  companies  liable  for  all  damage  done  to  cattle,  horses, 
and  other  animals,  until  they  shall  fence  their  roads,  renders  them  liable  to  the 
owner  of  cattle,  which  strayed  into  an  adjoining  close,  where  they  were  trespas- 
sers, and  thence  upon  the  railway,  or  from  the  highway  upon  the  railway.  And 
that  it  makes  no  difference  how  the  cattle  came  upon  the  railway,  unless  it  is  by 
the  direct  act  or  neglect  of  the  owner,  so  long  as  the  company  do  not  fence  their 
road  according  to  the  requirements  of  the  statute.  Corwin  v.  N.  Y.  &  Erie  Railw., 
3  Kernan,  42.  In  this  case  the  comjDany  had  contracted  with  the  land-owner  to 
build  the  fence,  which  he  had  not  done,  and  it  was  admitted,  that  if  he  had 
owned  the  cattle  he  could  not  recover.  It  is  somewhat  remarkable,  that  the 
rights  of  the  owner  of  cattle  trespassing  should  be  superior  to  those  of  the  owner 
of  the  land. 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  473 

prevails,  even  to  the  limited  extent  recognized  in  the  common 
law  in  England. 

It  was  held  in  Gorman  v.  Pacific  Railway,  that  the  company 
were  not  bound  to  fence  their  road  ;  but  it  was  also  considered 
that  the  jury  should  consider  the  fact  that  the  road  was  not 
fenced,  in  determining  whether  the  company  exercised  proper 
care  under  the  existing  circumstances  ;  and  it  was  said  that  such 
companies  should  exercise  the  utmost  care  and  diligence  in  the 
enjoyment  of  their  own  privileges  to  avoid  doing  injury  to 
others.18 

12.  It  has  been  considered  that  a  railway  is  not  responsible 
for  injuries  to  horses,  in  consequence  of  their  being  frightened 
on  the  road  by  the  noise  of  the  engine  and  cars,  in  the  prudent 
and  ordinary  course  of  their  operations.19 

13.  The  subject  of  negligence  in  the  plaintiff,  which  will  pre- 
vent his  recovery,  is  discussed  much  at  length  in  Beers  v.  The 
Housatonic  Railway,20  and  in  the  main  the  same  views  are 
adopted  in  *  regard  to  injuries  to  cattle,  which  we  have  stated 
in  regard  to  injuries  to  persons.21  It  is  there  laid  down,  by  the 
court,  that  where  there  was  negligence,  or  want  of  care,  in 
whatever  degree,  by  either  party,  is  a  question  of  fact  to  be 
determined  by  the  jury,  and  that  even  where  the  circumstances 
are  all  admitted,  it  will  not  be  determined  as  a  question  of  law, 
but  the  inference  of  negligence,  or  no  negligence,  is  one  of  fact 
for  the  jury. 

14.  But  this,  we  apprehend,  is  true  only  where  the  circum- 
stances leave  the  inference  doubtful.  If  the  proof  is  all  one  way, 
either  in  favor,  of  or  against  negligence  having  intervened,  the 
inference  is  always  one  of  law  for  the  court.22 

18  26  Mo.  R.  441. 

19  Burton  v.  The  Phil.  Wil.  &  Bait.  Railw.,  4  Harr.  252. 

20  19  Conn.  R.  566.  And  in  Poler  v.  New  York  Central  Railw.,  16  N.  Y. 
Court  of  Appeals,  476,  where  a  gate  adjoining  plaintiff's  land  upon  defendant's 
land  got  out  of  repair  and  liable  to  be  blown  open,  and  the  plaintiff,  without 
giving  notice  to  defendant,  took  measures  to  secure  the  gate,  which  proved 
ineffectual,  and  his  cattle  escaped  through  the  fence  and  were  killed  on  the 
track  of  defendant's  road,  it  was  a  question  of  fact  whether  the  plaintiff  was 
guilty  of  culpable  negligence. 

21  Post,  §  1 77,  and  cases  cited ;  Chicago  &  Mis.  Railw.  v.  Patchin,  16  111.  R.  198. 

22  Underhill  v.  N.  Y.  &  Harlem  Railw.,  21  Barb.  489 ;   Lyndsay  v.  Conn.  & 

*366 


474  INJURIES  TO   DOMESTIC   ANIMALS.  §  126. 

15.  There  are  some  few  cases  where  actions  have  been  brought 
for  injuries  to  cattle  or  horses,  in  consequence  of  some  alleged 
remote  negligence  in  the  company.  In  one  case,23  the  action 
was  for  the  loss  of  a  horse,  by  falling  into  a  large  well  upon  the 
company's  grounds.  The  plaintiff  had  frequent  car-loads  of 
lumber  coming  to  the  company's  station,  and  he  requested  them 
to  remove  it  to  a  position  on  their  track  where  it  could  be  dis- 
charged into  his  own  lumber-yard,  which  they  declining  to  do,  he 
drew  it  with  this  horse  to  the  proper  point,  and  unloaded  it. 
Upon  another  car  arriving  he  attempted  to  do  the  same,  without 
consulting  the  company,  but  his  horse  proved  restive  and  backed 
off  the  track,  and  in  his  struggle  fell  into  the  well.  The  plaintiff 
had  a  verdict  below,  and  a  new  trial  was  awarded,  upon  the 
ground  that  the  duty  of  the  company  to  exercise  care  and  pru- 
dence depends  upon  the  question  whether  the  plaintiff  is  in  the 
exercise  of  a  legal  right.  For  if  not,  he  must  show  that  he  exer- 
cised extraordinary  care  before  he  can  be  permitted  to  complain 
of  the  negligence  of  another. 

16.  And  in  another  case,24  the  plaintiff's  horse  was  killed,  by 
breaking  a  bloodvessel  in  struggling  from  fright  at  the  defend- 
ants' train  of  cars,  in  its  near  approach  to  the  turnpike  road, 
which  by  their  charter  they  were  required  to  purchase,  and  in 
crossing  all  roads  to  restore  them  to  their  former  state  of  useful- 
ness. At  the  place  of  the  injury  the  defendants  excavated  their 
road-bed  upon  *  the  turnpike,  some  five  feet  below  the  surface, 
leaving  a  steep  descent  upon  the  railway,  and  no  fence  be- 
tween the  track  of  the  turnpike  and  railway.  The  plaintiff  was 
passing  along  the  turnpike,  leading  his  horse  at  the  time.  It 
was  held,  that  under  their  charter  the  company  were  liable,  if 
the  excavation  impaired  the  safety  of  the  turnpike  for  public 
travel,  and  that  such  "  encroachments  of  defendants  upon  a  turn- 
pike is  a  public  nuisance,  for  which  any  person  sustaining  a  par- 
ticular injury  may  maintain  an  action." 

17.  And  it  has  been  laid  down,  in  general  terms,  that  a  rail- 
Pas.  Rivers  Railw.,  27  Vt.  R.  643.  Scott  v.  W.  &  R.  Railw.,  4  Jones  Law, 
432. 

23  Aurora  Branch  Railw.  v.  Grimes,  13  111.  R.  585. 

24  Moshier  v.  Utica  &  Sch.  Railw.,  8  Barb.  427.  But  see  Coy  v.  Utica  &  Sch. 
Railw.,  23  Barb.  643. 

*367 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  475 

way  company,  authorized  to  use  steam  locomotive  engines  upon 
tbeir  road,  is  not  liable  for  the  damage  or  disturbance  caused 
by  such  use,  near  a  turnpike  road  existing  before  the  railway 
company,  unless  such  engines  are  used  in  an  extraordinary  and 
unreasonable  manner.25 

18.  And  where  the  legislature  imposed  a  penalty  upon  rail- 
ways, of  $100  for  every  month's  delay,  in  performing  the  duty 
of  keeping  and  maintaining  legal  and  sufficient  fences  on  the 
exterior  lines  of  their  road,  as  required  by  their  charters,  it  was 
held,  that  the  neglect  of  the  corporation  to  perform  this  duty, 
rendered  them  liable  to  reimburse  any  person  suffering  injury 
thereby,  in  his  property,  in  an  action  at  common  law.  And  if 
the  defect  in  the  fences  by  which  the  injury  occurs  were  known 
to  the  company,  they  are  liable  for  the  damage  suffered,  notwith- 
standing their  engineer  was  at  the  time  in  the  exercise  of  due 
care,  and  notwithstanding  the  fence  was  originally  imperfectly 
built  by  the  plaintiff  for  the  company.26 

19.  In  an  action  for  injury  to  domestic  animals  by  the  passing 
engines  of  a  railway  company,  it  is  not  conclusive  of  the  liability 
of  the  company  that  the  damage  occurred  in  consequence  of  the 
passing  of  their  engine,  and  that  the  engineer  omitted  the  statu- 
tory requirements  of  blowing  the  whistle,  ringing  the  bell,  revers- 
ing the  engine,  &c.  It  should  still  be  submitted  to  the  determina- 
tion of  the  jury  whether  the  damage  was  caused  by  the  engi- 
neer's neglect  of  duty,  as  that  is  a  question  lying  exclusively 
within  their  province.27 

20.  One  who  voluntarily  suffers  his  cow  to  go  at  large  in  the 
public  streets  of  a  city,  with  no  one  to  take  charge  of  her,  and 
thus  to  stray  upon  a  railroad  track,  at  a  time  when  cars  are  pass- 
ing, is  guilty  of  such  carelessness  that  he  cannot  recover  for  any 

25  Bordentown  &  South  A.  Turnpike  v.  Camden  &  Aniboy  Railw.,  2  Harrison, 
314  ;  Coy  v.  Utica  &  Sch.  Railw.,  23  Barb.  643. 

26  Norris  v.  Androscoggin  Railw.,  39  Maine  R.  273.  In  this  case  the  fence 
was  stone- wall,  built  by  plaintiff,  by  contract  with  the  company  some  two  years 
before,  and  accepted  by  them.  The  gap  in  the  wall  whereby  the  animal  escaped 
upon  the  track  of  the  railway,  occurred  several  days  before,  and  was  known  to 
the  defendants.  There  was  no  other  evidence  of  the  manner  of  constructing 
the  wall.  The  court  held  the  plaintiff  stood  in  the  same  position,  as  to  his  claim, 
as  if  any  other  one  had  built  the  wall. 

27  Memphis  &  Charlotte  Railw.  v.  Bibb,  37  Ala.  R.  699. 


476  INJURIES   TO   DOMESTIC   ANIMALS.  §  126. 

injury  to  the  animal  through  any  degree  of  negligence  short  of 
that  which  is  gross.28 

21.  The  competency  of  the  evidence  of  experts  in  regard  to 
the  management  of  locomotives  so  as  to  avoid  the  possibility  of 
doing  damage  to  animals  upon  the  track,  is  discussed  in  a  late 
case  in  Ohio.29  It  is  not  easy  to  define  any  very  exact  rule  in 
regard  to  the  extent  of  the  testimony  of  experts  in  regard  to  the 
practicability  of  avoiding  doing  damage,  under  a  given  state  of 
exposure  of  persons  or  animals.  The  subject  is  a  broad  one, 
and  to  its  full  discussion  would  require  a  volume,  instead  of  a 
single  paragraph.  But  we  make  no  question,  the  management 
of  a  locomotive  steam  engine,  under  any  and  all  conditions  and 
circumstances,  is  a  matter  of  science  and  skill,  as  to  which  courts 
and  juries  are  not  ordinarily  competent  to  form  a  reliable  and 
satisfactory  judgment,  and  that  they  do  therefore  stand  in  need 
of  aid  and  instruction  in  regard  to  the  matter,  whenever  it  comes 
before  them  for  determination,  and  that  consequently  the  testi- 
mony of  experts  may  always  be  received  under  the  ordinary  limi- 
tations and  restrictions. 

22.  The  subject  of  the  responsibility  of  railways  for  injury  to 
cattle  running  at  large  and  coming  upon  their  track  is  very  care- 
fully considered  in  a  later  case  in  Ohio.30  It  is  here  declared  that 
the  owner  of  cattle  who  does  not  keep  them  within  his  own  in- 
closure,  when  he  might  do  so  by  proper  care,  cannot  require  of 
a  railway  company  to  regulate  the  management  and  speed  of 
their  trains  with  reference  to  cattle  coming  upon  their  track. 
Such  companies,  like  all  others,  have  a  right  to  regulate  the  man- 
agement and  conduct  of  their  business  solely  with  reference  to 
the  security  of  persons  and  property  in  their  charge,  and  the  meet- 
ing of  their  reasonable  appointments  in  regard  to  them,  and  may 
make  their  plans  upon  the  reasonable  and  legal  presumption 
that  other  persons  will  perform  all  their  legal  obligations  towards 
them,  and  consequently  that  the  owners  of  domestic  animals  will 
keep  them  at  home,  where  alone  they  belong,  and  not  suffer 
them  to  stray  upon  the  track  of  a  railway  company,  unless  they 

28  Bowman  v.  Troy  &  Boston  R.  Co.,  37  Barb.  516. 

M  Bellfontaine  &  Iowa  R.  Co.  v.  Bailey,  11  Ohio  St.  333. 

20  Central  Ohio  R.  Co.  v.  Lawrence,  13  Ohio  St.  66. 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  477 

are  prepared  to  incur  the  legitimate  hazards  of  such  an  ex- 
posure. But  when  a  railway  company  finds  cattle  upon  its  track, 
it  is  bound  to  avoid  damage  to  them,  if  practicable,  by  the  same 
degree  of  effort  that  a  prudent  owner  of  the  cattle  would  be  ex- 
pected to  do,  properly  considering  the  hazard  both  to  the  train 
and  the  cattle.  And  the  proper  inquiry  in  such  a  case  is,  whether 
the  agents  of  the  company  exercised  reasonable  and  proper  care, 
in  running  their  engine,  to  avoid  injury  to  the  cattle  of  the 
plaintiff;  and  the  facts  and  circumstances  bearing  upon  this 
question  are  for  the  exclusive  consideration  of  the  jury. 

23.  And  much  the  same  view  is  taken  in  a  recent  case  in 
Kentucky,31  where  it  is  said  that  the  paramount  duty  of  a  rail- 
way company,  in  the  conduct  of  a  train,  is  to  look  to  the  safety 
of  persons  and  property  therein,  and  subordinate  to  this  is  the 
duty  to  avoid  unnecessary  damage  to  animals  straying  upon  the 
road.  And  while  a  railway  company  is  not  justified  in  any  con- 
duct of  its  agents,  in  regard  to  cattle  upon  its  track,  which  is 
needless,  wanton,  or  wilful,  it  cannot  be  responsible  for  any- 
thing short  of  this,  since  the  owners  of  cattle  are  specially  bound 
to  keep  them  off  the  tracks  of  railways. 

24.  And  in  a  late  case  in  Maryland,32  it  was  held  that  the  well- 
settled  principle  of  the  common  law,  that  a  plaintiff  is  not  entitled 
to  recover  for  injuries  to  which  his  own  fault  or  negligence  has  di- 
rectly contributed,  is  not  abrogated  by  the  several  acts  of  assembly, 
regulating  the  liabilities  of  railways  in  this  state  for  stock  killed 
or  injured  by  their  trains.  These  acts  leave  the  question  of  the 
effect  of  the  plaintiff's  conduct  upon  his  right  to  recover  for  the 
acts  of  others  where  it  was  at  the  common  law.  But  the  onus 
of  proof  is  changed  by  the  statute,  and  where  stock  is  killed  the 
law  now  imputes  negligence  to  the  company,  unless  it  can  show 
that  the  damage  results  from  unavoidable  accident.32  It  was 
not  intended  hereby  to  interfere  with  the  time-table  or  the  rate 
of  speed  on  railways.  The  act  leaves  all  this  to  the  discretion  of 
the  companies,  but  imposes  upon  them  the  highest  degree  of 
care  and  caution  ;  and  in  the  absence  of  fault  on  the  part  of  the 
plaintiff  it  must  appear  that  the  collision  took  place  without  any 

31  Lou.  &  Frankfort  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177. 

32  Keech  v.  Baltimore  &  Wash.  R.  Co.,  17  Md.  R.  32. 


478  INJURIES   TO   DOMESTIC    ANIMALS.  §  126. 

fault  or  negligence  on  the  part  of  the  company  or  its  agents,  in 
order  to  exonerate  them.  In  other  words,  if  the  plaintiff  is  not 
in  fault  the  company  will  be  responsible,  unless  the  damage  is 
the  result  of  unavoidable  accident. 

25.  In  Indiana  it  is  held,  that  in  an  action  against  the  com- 
pany for  killing  stock  it  must  appear,  both  in  the  complaint  and 
proof,  that  the  damage  resulted  from  the  carelessness  of  the  com- 
pany or  the  omission  to  fence  their  road.33 

26.  In  Missouri34  it  is  determined  by  statute  and  the  construc- 
tion of  the  courts,  that  if  the  accident  occur  upon  a  portion  of 
the  line  not  enclosed  by  a  lawful  fence,  and  not  at  a  road  or 
street  crossing,  whereby  domestic  animals  are  killed  or  injured,- 
the  company  are  responsible,  at  all  events,  and  without  reference 
to  any  question  of  negligence,  either  on  their  part  or  that  of  the 
owner  of  the  animals.  But  at  highway  or  street  crossings  the 
company  are  not  responsible  for  any  damage  to  such  animals, 
unless  it  occur  through  some  neglect  or  fault  on  their  part. 

27.  In  California35  it  seems  to  be  considered  that  the  custom 
of  the  country  to  suffer  domestic  animals  to  go  at  large  on  the 
commons  will  override  the  rule  of  the  common  law,  obliging  the 
owner  to  restrain  his  cattle  within  his  enclosures,  and  that  con- 
sequently no  negligence  is  imputable  to  the  owner  on  account  of 
so  suffering  his  animals  to  go  at  large. 

But  railway  companies  are  not  held  responsible  for  damage 
inflicted  upon  such  animals  so  running  at  large  unless  it  might 

83  Indianapolis,  &c,  R.  Co.  v.  Sparr,  15  Ind.  R.  440;  Same  v.  Williams,  Id.  486. 

34  Meyer  v.  North  Mo.  R.  Co.,  35  Mo.  R.  352 ;  Powell  v.  Han.  &  St.  Jos.  R. 
Co.,  Id.  457  ;  Burton  v.  North  Mo.  R.  Co.,  30  Id.  372. 

35  Waters  v.  Moss,  12  Cal.  R.  535.  And  in  Alger  v.  Miss.  &  Mo.  Raihv. 
Co.,  10  Iowa  R.  268,  it  was  held  that  permitting  cattle  to  run  at  large  does 
not  impute  negligence  to  the  owner,  nor  is  he  liable  as  a  trespasser  if  they 
are  found  upon  an  unfenced  railway.  A  railway  company  is  bound  to  exercise 
ordinary  care  not  to  injure  animals  coming  upon  their  track  through  defect  of 
fence.  After  the  road  is  fenced  the  company  is  only  liable  in  such  cases  for  gross 
neglect.  And  in  McCall  v.  Chamberlain,  13  Wise.  R.  637,  it  is  held  that  the 
duty  upon  railway  companies  to  fence  their  roads  is  intended  for  the  protection 
of  the  public  generally.  And  until  such  fences  are  built  the  company  is  liable 
for  all  injuries  to  animals  upon  their  track,  without  reference  to  any  question  of 
being  rightfully  in  the  adjoining  land  from  whence  they  escaped  upon  the  track. 
And  the  lessee  of  the  company  assumes  all  their  responsibility. 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  479 

have  been  avoided  by  ordinary  care  and  prudence  on  the  part  of 
the  company,  at  the  time.35 

28.  There  seems  to  have  been  some  very  nice  questions  raised 
in  the  courts  of  Illinois,  for  if  it  were  not  so  some  of  the  decisions 
would  seem  to  partake  largely  of  the  character  of  incomprehen- 
sibility. For  we  find  it  gravely  declared,  in  one  case,37  that  the 
law  does  not  require  any  different  words  to  be  used  in  proving  a 
case  against  a  railway  from  those  used  in  other  cases.  It  is  only 
necessary  the  mind  should  be  convinced  of  the  existence  of  the 
necessary  facts.  And  in  the  same  case  :  The  presumption  is  that 
the  houses  compose  a  village,  and  if  an  animal  is  killed  beyond 
the  houses  the  presumption  is  that  it  is  killed  beyond  the  village, 
and  if  the  town  extends  beyond  the  houses  the  defendant  should 
know  the  fact ;  and  also  :  Every  one  is  supposed  to  have  some 
idea  of  the  value  of  such  property  as  is  in  general  use,  and  it  is 
not  necessary  to  have  a  drover  or  butcher  to  prove  the  value  of 
a  cow.  And  in  another  case  in  this  state  it  seems  to  have 
been  claimed  that  the  declaration  against  a  railway  for  in- 
juries to  domestic  animals  must  negative  the  possibility  of  any 
excuse  on  the  part  of  the  company.  But  the  court  hold  that 
matters  of  excuse  on  the  part  of  the  company,  as  that  the  animals 
were  killed  at  a  farm  crossing  and  that  the  road  was  properly 
fenced  by  them,  must  be  shown  by  way  of  defence.33  But  it  was 
held  in  another  case  in  that  state,  that  the  plaintiff,  in  making 
out  his  own  cause  of  action,  must  negative  by  proof  the  existence 
of  a  public  crossing  where  the  killing  occurred,  and  should  show 
that  the  defendants  were  bound  to  fence  at  that  point.39  And  it 
was  held  in  a  later  case,  that  it  was  negligence  in  a  railway  com- 
pany to  allow  vegetation  to  grow  upon  its  right  of  way,  so  that 
cattle  may  be  concealed  from  view.40 

29.  If  one  allows  stock  to  run  in  the  highway  near  a  railway 

36  Richmond  v.  Sacramento  Valley  R.  Co.,  18  Cal.  R.  351.  There  is  no  statute 
here  requiring  railways  to  be  fenced  by  the  companies.  But  when  that  is  re- 
quired, and  the  plaintiff  alleges  the  duty  was  not  performed,  he  must  prove  it  as 
part  of  his  case.     Indianapolis,  &c,  R.  Co.  v.  Wharton,  13  Ind.  R.  509. 

37  Ohio  &  Miss.  R.  Co.  v.  Irvin,  27  111.  R.  178. 

88  Great  Western  Railw.  v.  Helm,  27  111.  R.  198. 

39  Ohio  &  Miss.  R.  Co.  v.  Taylor,  27  111.  R.  207. 

40  Bass  v.  Chicago,  B.  &  Quincy  R.,  28  111.  R.  9. 


480  INJURIES   TO   DOMESTIC   ANIMALS.  §  126. 

crossing  it  is  such  negligence  that  he  cannot  recover  for  any  inju- 
ry41 thereto.  And  if  one  allows  his  cattle  so  to  run  in  the  highway 
and  thus  come  upon  the  track  of  the  railway,  and  the  company 
use  all  statutory  and  other  reasonable  precautions  to  avoid  dam- 
age to  them,  the  owner  cannot  recover  for  any  such  damage 
which  is  thus  caused  either  wholly  or  in  part  by  his  own  neglect, 
and  he  would  also  be  liable  for  all  injury  to  the  company  or  to 
persons  or  property  in  their  charge.41  And  the  omission  of  the 
company  to  sound  the  whistle  or  to  ring  the  bell,  in  such  cases, 
will  not  render  them  responsible  for  damage  to  cattle,  unless  it 
appear  that  such  precautions  would  have  prevented  the  injury.42 

30.  In  actions  for  injury  to  cattle,  if  negligence  is  clearly 
proved  on  the  part  of  the  plaintiff,  the  company  are  not  responsi- 
ble unless  guilty  of  gross  negligence,  which  implies  wilful  injury.43 
In  such  actions,  founded  upon  the  statute,  the  declaration  should 
negative  all  the  exceptions  in  the  statute  ;44  but  the  plaintiff  is 
not  called  upon  to  negative  in  proof  the  existence  of  any  contract 
between  himself  and  the  company  to  maintain  the  fences  along 
the  line  of  the  road  against  his  land.44 

31.  As  the  statute  does  not  require  railway  companies  to 
fence  their  road  within  the  limits  of  cities  and  villages,  they  are 
not  responsible  for  damage  to  domestic  animals  caused  by  their 
trains  within  such  corporate  limits  ;  and  if  the  animal  come  upon 
their  track  within  these  limits,  and  is  driven  by  the  train  beyond 
these  limits  and  there  killed,  without  any  fault  on  the  part  of 
the  company,  it  is  immaterial  whether  the  road  was  properly 
fenced  at  the  point  where  the  animal  was  killed,  as  it  came  upon 
the  track  at  a  point  where  the  company  where  not  obliged  to 
fence.45  The  mere  killing  of  an  animal  by  a  railway  company 
does  not  render  them  liable  unless  they  have  been  guilty  of  neg- 
ligence or  the  case  comes  within  the  statute.45 

32.  In  cases  where  the  company  are  required  by  statute  to 

41  Ch.  Bur.  &  Quincy  R.  Co.  v.  Cauffman,  28  111.  R.  513. 

42  Illinois  Central  Railw.  v.  Phelps,  29  111.  R.  447. 

43  Illinois  Central  Railw.  v.  Goodwin,  30  111.  R.  117. 

44  Great  Western  Railw.  v.  Bacon,  30  111.  R.  347. 

46  Same  v.  Morthland,  30  111.  R.  451  ;  Galena  &  Chicago  R.  Co.  v.  Griffin,  31 
111.  R.  303.  As  to  cases  under  positive  statute,  see  Illinois  Central  Railw.  Co. 
v.  Swearingen,  33  111.  R.  289. 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  481 

ring  the  bell  or  sound  the  whistle,  and  that  is  omitted,  if  injury 
occur  in  consequence,  they  will  be  responsible,  unless  the  party 
injured  was  himself  guilty  of  negligence  contributing  to  such 
result.46  It  is  here  said  that  railway  companies  are  responsible 
for  injuries  to  persons  or  property,  when  wilfully  done,  or  result- 
ing from  gross  neglect  of  duty.  The  company  to  exonerate 
themselves  must  use  all  reasonable  or  statutory  precautions  to 
prevent  the  injury,  and  an  omission  to  do  so  will  render  them 
responsible,  if  the  omission  produce  or  contribute  to  the  injury, 
and  the  plaintiff  was  not  himself  in  fault  in  any  particular  also 
contributing  to  the  injury.46 

46  Great  Western  ,R.  Co.  v.  Geddis,  33  111.  R.  304. 


31 


482 


FENCES. 


§  127. 


CHAPTER    XIX 


FENCES. 


SECTION    I, 


Upon  whom  rests  the  Obligation  to  maintain  Fences. 


1.  By  the  English  statute  there  is  a  separate    16. 

provision  made  for  fencing . 

2.  This  provision  is  there  enforced  against 

the  companies  by  mandamus.  17, 

3.  But  where  no  such  provision  exists,  the 

expense  of  fencing  is  part  of  the  land    18. 
damages. 

4.  And  ivhere  that  is  assessed,  and  payment    19. 

resisted  by  the  company,  the  land-owner 

is  not  obliged  to  fence.  20. 

5.  In  some  cases  it  has  been  held  the  fencing 

is  to  be  done  equally,  by  the  company    21. 
and  the  land-owner. 

6.  Assessment  of  land-damages,  on  condition  j  22. 

company  build  fences,  raises  an  implied 
duty  on  their  part.  23. 

7.  In  some  states,  owners  of  cattle  not  re-  j 

quired  to  confine  them  upon  their  own  j  24. 
land. 

8.  Lessee  of  railway  bound  to  keep  up  fences  '  25. 

and  farm  accommodations. 

9.  Company  bound  to  fence  land  acquired    26, 

by  grant. 

10.  Farm-crossings  required  wherever  neces-    27 

sary. 

1 1 .  Where  land-owner  declines  farm  accom-  J  28. 

modations. 

12.  Fences  and  farm  accommodations  not  re-    29 

quired  for  safety  of  servants  and  em- 
ployees. 30 

13.  Requisite  proof  where  company  liable  fur    31 

all  cattle  killed.  32 

14.  Party  bound  to  fence  assumes  primary 

responsibility.  33, 

15.  Company  not  responsible  for  injury  at 

road  crossings. 
*368 


Railivay  companies  not  responsible  for  in- 
jury to  cattle  by  defect  offence  about 
yard. 

Case  of  horse  escaping  through  defect  of 

fence. 

It  must  appear  the  injury  occurred  by 
default  of  company. 

Cattle-guards  required  in  villages  but  not 
so  as  to  render  streets  unsafe. 

Company  responsible  for  injuries  through 
defect  of  fnces  and  cattle-guards. 

Courts  of  New  Hampshire  maintain 
common-law  responsibility. 

Company  responsible  as  long  as  they  con- 
trol road. 

Maintaining  fences  along  the  line  of  rail- 
ivay, matter  of  police. 

Rule  as  to  land-owner  agreeing  to  main- 
tain fence,  Spc. 

Company  not  responsible  for  defect  of 
fence  unless  in  fault. 

Railway  not  responsible  in  Indiana  un- 
less in  fault. 

Company  not  liable  where  fence  thrown 
down  by  others. 

Where  owner  in  fault  he  cannot  recover 
unless,  Spc. 

Rule  of  damages  for  not  building  fence, 
frc 

Land-owner  must  keep  up  bars. 

Illustrations  of  the  general  rule. 

In  actions  under  statute  case  must  be 
brought  within  it. 

In  Pennsylvania  one  required  to  keep  his 
cattle  at  home. 


§  127.  UPON   WHOM    THE   DUTY   RESTS.  483 

§  127.  1.  By  the  Railway  Clauses  Consolidation  Act1  it  is 
made  the  duty  of  the  railways  in  England,  before  they  use  land 
for  any  of  their  purposes,  to  fence  it,  and  make  convenient  passes 
for  the  owner,  which,  if  the  parties  do  not  agree,  are  to  be  deter- 
mined by  two  magistrates.  Under  this  statute  it  has  been  held, 
that  the  railway  is  not  excused  from  making  the  necessary 
accommodations  to  keep  up  communication,  to  the  owner,  be- 
tween different  *  parts  of  lands,  intersected  by  the  line  of  a  rail- 
way, because  these  are  not  denned  in  the  arbitrators'  award  of 
land  damages.  They  are  totally  distinct  things  from  the  land 
damages.2  And  where  the  jury,  assessing  land  damages,  also 
made  a  separate  verdict  for  the  expense  of  crossing  the  railway 
by  a  private  way,  it  was  considered  that  they  exceeded  their 
jurisdiction,  and  their  proceedings  were  quashed.3 

2.  It  is  considered,  in  the  English  courts,  that  the  expense  of 
fences  and  crossings  being  imposed  upon  the  railways  by  stat- 
tute,  perpetually,  and  the  mode  of  enforcing  its  performance 
pointed  out  in  the  statute,  it  has  no  connection  with  the  land 
damages,  but  is  to  be  enforced  under  the  statute,  and  land 
damages  are  to  be  appraised,  upon  the  basis  of  that  duty  resting 
upon  the  railway. 

3.  But  where  the  statute  makes  no  such  provision,  the  expense 
of  fencing  and  making  crossings  are  important  considerations 

1  8  and  9  Vict.  ch.  20,  §  40.  But  in  Kyle  v.  Auburn  &  Rochester  Railw.,  2 
Barbour's  Ch.  489,  the  court  declined  to  interfere  by  injunction,  to  compel  the 
building  of  -a  farm  crossing,  although  the  company  assumed  before  the  jury  that 
such  a  crossing  should  be  built  by  them,  the  plans  showing  no  such  crossing. 
It  is  said,  under  such  circumstances,  to  be  the  duty  of  the  land-owner  to  make 
"necessary  crossings,  and  that  he  is  a  trespasser  for  crossing  the  railway  without 
them ;  and  this  should  be  so  considered,  in  assessing  damages  for  taking  the 
land,  and  compensation  made  for  such  expense. 

2  Skerratt  v.  The  North  Staffordshire  Railw.,  5  Railw.  C.  166,  per  Lord  Cot- 
tenkam,  Chancellor.     See  post,  §  193,  n.  3. 

3  In  re  South  Wales  Railw.  Co.  v.  Richards,  6  Railw.  C.  197.  So  too  where 
the  land-owner  stipulated  with  the  promoters  for  certain  watering-places  and 
other  conveniences,  and  to  accept  £  5,000  for  especial  damage,  and  to  withdraw 
thereupon  opposition  to  the  bill,  it  was  held  the  duty  to  make  suitable  watering- 
places  might  be  enforced  by  mandamus.  Reg.  v.  York  &  N.  Midland  Railw., 
3  Railw.  C.  764  ;  infra,  §  128,  190,  191.  The  provision  for  fences,  in  the  Eng- 
lish statute,  being  a  separate,  independent,  general  provision,  is  enforced,  alto- 
gether aside  of  the  proceedings  to  assess  land  damages. 

*369 


484  FENCES.  §  127. 

in  estimating  damages  for  the  land  taken,  and  this  expense 
should  undoubtedly  be  borne  by  the  company,  in  addition  to 
paying  the  value  of  the  land,  for  otherwise  the  land  is  taken 
without  an  equivalent. 

But  the  courts  in  most  of  the  American  States  have  resisted 
this  view  wherever  it  was  practicable,  more  commonly  upon 
some  technical  ground  of  presumption  or  inference,  when,  in 
fact,  the  omission  of  such  an  express  provision  in  the  charter  or 
the  general  laws  of  the  states  was  wholly  the  result  of  oversight 
in  the  legislatures.  But  it  is  refreshing  to  find  some  courts  so 
far  relieved  from  the  trammels  of  mere  technicality  as  not  to 
feel  compelled  to  sacrifice  an  obvious  principle  of  justice  to  the 
shadow  of  a  mere  form.  In  a  recent  case  in  California  we  find 
an  announcement  upon  this  question  which  evidently  comes  from 
the  right  quarter,  a  sense  of  simple  justice.  It  declares,  if  fences 
are  rendered  necessary  for  the  protection  of  the  crops  of  the 
land-owner  by  means  of  the  construction  of  the  railway  through 
the  land,  the  cost  of  such  fences  must  be  included  in  the  com- 
pensation to  be  paid  by  the  company,4  and  this  by  necessary  con- 
sequence must  include  a  sum  sufficient  to  indemnify  the  owner 
against  the  constantly  accruing  expenses  of  maintaining  such 
fences.  And  the  tendency  of  the  more  recent  decisions  is  sensi- 
bly in  this  direction  ;  and  we  might  add,  without  offence,  that  in 
our  judgment  it  is  the  only  sensible  direction  the  decisions  could 
take,  and  we  have  always  expected  them  to  take  such  a  direction 
in  the  end,  however  late  it  may  come.5 

4.  And  where  in  such  circumstances  the  commissioners  as- 
sessed the  land  damages,  and  a  separate  sum  for  building  fences, 
and  judgment  was  rendered  in  favor  of  the  land-owner,  for  both 
sums,  but  the  payment  resisted  by  a  proceeding  in  Chancery,  on 
the  part  of  the  railway,  and  while  this  was  still  undecided,  the 
company  commenced  running  their  engines,  and  the  cattle  of 
the  occupier  of  the  land  strayed  upon  the  track  and  were  killed 
by  the  engines  of  the  company,  it  was  held,6  that  the  obligation 

*  Sacramento  Valley  Railw.  v.  Moffatt,  6  Cal.  R.  74. 

5  Evansville  Railw.  v.  Fitzpatrick,  10  Ind.  R.  120;  Same  v.  Cochran,  Id.  560; 
Same  v.  Stringer,  551. 

6  Quimby  v.  Vermont  Central  Railw.  Co.,  23  Vt.  R.  387;  See  also  Vander- 
kar  v.  Rensselaer  &  Sara.  Railw.,  13  Barb.  390.     But  in  the  English  Railway 


§  127.  UPON  WHOM  THE  DUTY  RESTS.  485 

to  maintain  the  fence  rests  primarily  upon  the  company,  and 
until  they  have  either  built  the  fences,  or  paid  the  land-owner  for 

Acts,  where  the  company  is  required  to  make  crossings,  where  land  is  divided, 
and  the  mode  of  determinins;  the  nature  of  the  crossings  is  to  be  referred  to  two 
justices,  upon  the  application  of  the  land-owner  ("  in  case  of  any  dispute")  it 
was  held,  that  until  the  company  have  made  a  communication,  a  party  whose 
land  had  been  severed  by  the  railway  has  a  right  to  pass  from  one  portion  of  his 
property  to  the  other  across  the  railway,  at  any  point,  and  that  the  section  re- 
quiring the  owner  to  pass  at  such  a  place  as  shall  "  be  appointed  "  for  crossing, 
means,  "  when  such  places  shall  have  been  appointed."  Grand  Junction  Railw. 
v.  White,  2  Railw.  C.  559.  And  where,  at  the  time  of  appraising  land  damages, 
the  land-owner,  in  the  presence  of  the  agents  of  the  company,  pointed  out  to 
the  commissioner  the  place  where  he  would  have  a  farm-crossing,  and  no  objec- 
tion was  made  by  the  company,  and  the  sum  awarded  was  paid,  but  the  com- 
pany, in  constructing  their  road,  were  throwing  up  an  embankment  at  that  point, 
and  locating  the  crossing  at  a  different  place,  where  it  would  be  inconvenient 
for  the  land-owner,  an  injunction  was  granted,  until  the  company  should  either 
make  a  suitable  crossing  or  compensate  the  land-owner.  Wheeler  v.  Rochester 
&  Sy.  Railw.,  12  Barb.  227;  Milwaukie  &  Mis.  Railw.  v.  Eble,  4  Chand.  72. 
It  is  here  held,  that  the  land-owner  is  entitled  to  include,  in  his  damages,  the 
expense  of  fencing,  as  incidental  to  the  taking  of  the  land.  But  the  contrary 
is  held  in  a  very  elaborate  case  in  Iowa,  Henry  v.  Dubuque  &  Pacific  Railw., 
2. Clarke,  288.  But  the  argument  of  the  court  seems  to  us  unsatisfactory  and 
suicidal. 

And  where  the  railway  at  first  contracted  with  the  land-owner  to  build  the 
fence  for  them  at  a  specified  price,  but  a  controversy  arising  in  regard  to  land 
damages,  the  commissioners  reported  a  sum  which  was  finally  confirmed  by  the 
court,  and  an  additional  sum  for  the  expense  of  building  the  fence,  and  the 
plaintiff  took  judgment  and  execution  for  this  also,  and  subsequently  built  the 
fence,  according  to  his  contract  with  the  company,  and  sued  the  company  for 
the  price,  it  was  held  that  he  could  not  recover,  the  former  judgment  Laving 
merged  the  contract,  and  imposed  upon  him  the  duty  to  build  the  fence,  under 
the  award  and  judgment.  It  was  also  held  that  the  land-owner  could  not  claim 
to  recover  anything  beyond  the  award  for  having  built  the  fence,  according  to 
the  original  contract,  which  rendered  it  more  expensive  to  him  than  it  would 
otherwise  have  been.  Curtis  v.  Vermont  Central  Railw.,  23  Vt.  R.  613  ;  s.  c.  1 
Am.  Railw.  C.  258;  see  Lawton  v.  Fitchburg  Railw.,  8  Cush.,230. 

And  where  the  statute  requires  the  company  to  make  farm-crossings  where 
they  divide  land,  it  is  not  proper  for  the  jury,  in  assessing  compensation  to  the 
land-owner,  to  include  the  expense  of  a  bridge  for  the  purpose  of  a  farm-cross- 
ing. Philadelphia,  Wilmington,  and  Baltimore  Railw.  v.  Trimble,  4  AVharton, 
47  ;  s.  c.  2  Am.  Railw.  C.  245. 

In  the  case  of  Chicago  &  Rock  Island  Railw.  v.  Ward,  16  Illinois,  522,  where 
the  company  covenanted  to  maintain  fences  upon  land  intersected  by  their  road, 
and  failed  to  perform  the  covenant,  and  crops  were  destroyed,  it  was  held  the 


486  FENCES.  §  127. 

doing  it,  a  sufficient  time  to  enable  him  to  do  it,  the  mere  fact 
that  cattle  get  upon  the  road  from  the  land  adjoining  is  no 
ground  for  imputing  negligence  to  the  owner  of  the  cattle.6 

*  5.  In  some  cases  in  this  country  it  has  been  held  that  the 
railway  and  the  adjoining  land-owner  are  to  defray  equal  propor- 
tions of  *  the  expense  of  maintaining  fences,  upon  the  principle 
of  being  adjoining  proprietors,  and  having  equal  interest  in  hav- 
ing the  fence  maintained,  unless  the  land-owner  chooses  to  let 
his  land  lie  in  common,  and  in  that  case  the  company  must  be 
at  the  whole  expense  of  fencing,  as  a  necessary  protection  and 
security  to  their  business.7 

company  were  liable  for  the  value  of  the  crops  growing  upon  the  land  and  de- 
stroyed, as  of  the  time  when  fit  for  harvesting.  This  does  not  seem  entirely  in 
accordance  with  general  principles  upon  this  question.  The  case  professes  to  go 
upon  the  authority  of  De  Wint  v.  Wiltse,  9  Wend.  325.     But  see  §§  148,  156. 

7  In  the  matter  of  the  Rensselaer  &  Sar.  Railw.,  4  Paige,  553.  In  North- 
eastern Railw.  v.  Sineath,  8  Rich.  185,  it  is  held  that  damages  are  not  to  be  as- 
sessed for  fencing  through  uninclosed  land  used  for  grazing.  In  a  recent  case 
in  Kentucky,  Louisville  &  Frankfort  Railw.  v.  Milton,  14  B.  Monr.  75,  it  is 
held,  that  where  one  grants  the  right  of  building  a  railway  across  his  land,  nei- 
ther the  land-owner  or  the  company  are  bound  to  fence  adjoining  the  railway. 
If  the  land-owner  sutfer  his  cattle  to  run  at  large,  as  he  may,  if  he  choose  to  in- 
cur the  risk,  he  cannot  recover  damages  of  the  company  for  any  injury  sustained 
by  them,  unless  it  might  have  been  avoided  by  the  agents  of  the  company,  with 
due  regard  to  the  safety  of  the  train  and  its  contents.  If  such  cattle,  permitted 
to  run  at  large  upon  the  railway  track,  are  killed  accidentally  by  the  train, 
when  running  at  its  customary  speed,  the  owner  cannot  recover  of  the  com- 
pany. 

The  court  here  discountenance  the  notion  that  seems  sometimes  to  have  pre- 
vailed, that  if  the  railway  are  in  the  right  in  running  their  train,  and  especially 
where  cattle  are  trespassing  upon  the  track,  they  may  destroy  them  at  will,  with- 
out incurring  any  responsibility.  And  in  regard  to  the  case  of  New  York  & 
Erie  Railw.  v.  Skinner,  19  Penn.  State,  298,  the  court  say :  "  This  court  is  not 
disposed  to  sanction  all  the  legal  doctrines  avowed  in  that  opinion." 

Railways  are  only  bound  to  the  use  of  such  diligence,  prudence,  and  skill,  to 
avoid  injury  to  cattle  rightfully  in  the  highway  at  a  road-crossing,  as  prudent 
men  exercise  in  the  conduct  of  their  own  business.  And  as  to  cattle  wrongfully 
upon  the  railway,  unless  the  injury  is  caused  wilfully,  or  through  gross  negli- 
gence, the  company  are  not  liable.  Chicago  &  Mississippi  Railw.  v.  Patchin,  16 
111.  R.  198  ;  Great  Western  Railw.  v.  Thompson,  17  111.  R.  131  ;  Quimby  v.  Vt. 
Central  Railw.,  23  Vt.  R.  387  ;  Central  Mil.  Tr.  Railw.  v.  Rockafellow,  17  111. 
R.  541  ;  Railroad  Co.  v.  Skinner,  19  Penn.  St.  298. 

In  a  late  case  in  New  Hampshire,  White  v.  Concord  Railway,  10  Foster,  188, 
*  370,  371 


§  127.  UPON  WHOM  THE  DUTY  RESTS.  487 

*  6.  But  many  of  the  American  cases  assume  the  ground  that 
where  there  is  no  statute  imposing  the  duty  of  fencing  upon  the 

it  was  held,  that  Avhere  the  statute  required  railways  to  fence  and  maintain 
proper  cattle-guards,  cattle-passes,  and  farm-crossings,  for  the  convenience  and 
safety  of  the  land-owners  along  the  side  of  the  road,  provided  they  might  in- 
stead settle  with  the  land-owners  therefor,  and  a  railway  divides  a  pasture,  and 
a  crossing  is  made,  under  the  statute,  the  land-owner  may  let  his  cattle  run  in 
the  pasture  "  without  a  herdsman,"  and  that  the  company  will  be  liable  for  their 
destruction  while  crossing  the  track  from  one  pasture  to  the  other,  unless  the 
injury  was  caused  by  accident,  or  by  the  fault  of  the  owner,  or  unless  it  appear 
that  the  company  have  settled  with  the  owner  in  relation  to  such  guards,  passes 
and  farm-crossings. 

And  it  was  held,  also,  in  the  same  case,  that  where  the  plaintiff  deeded  the 
land  to  the  company  upon  condition,  "  said  corporation  to  fence  the  land  and 
prepare  a  crossing,  with  cattle-guards,  at  the  present  travelled  path,  on  a  level 
with  the  track,"  this  was  not  such  settlement,  and  did  not  alter  the  legal  rela- 
tions of  the  parties. 

In  this  case,  both  parties  being  in  the  right,  were  bound  to  the  degree  of  pru- 
dence which  is  to  be  expected  of  prudent  men.  The  railway,  knowing  of  the 
crossing,  and  of  the  liability  of  cattle  to  be  upon  it,  were  bound  to  keep  a  look- 
out, rather  than  the  land-owner  to  keep  some  one  constantly  upon  the  "  look- 
out." 

In  the  case  of  Long  Island  Railw.  3  Edw.  Ch.  487,  the  Vice-Chancellor 
seems  to  consider  that  a  railway  company  have  no  interest  in  having  their  road 
fenced,  and  are  not  therefore  bound  to  contribute  to  the  expense  of  fencing, 
which  is  at  variance  with  the  opinion  of  the  Chancellor  (4  Paige,  553),  and 
equally,  as  it  seems  to  us,  with  reason  and  justice.  See'  Campbell  v.  Mesier, 
4  Johns.  Ch.  334. 

In  a  recent  case,  in  the  Supreme  Court  of  Pennsylvania,  Sullivan  v.  Phila.  & 
11.  Railw.,  G  Am.  Law  Reg.  342,  the  subject  of  the  duty  of  railway  companies  to 
fence  their  roads  for  the  security  of  passengers  is  discussed,  and,  as  it  seems  to 
us,  many  sensible  and  practical  suggestions  made.  The  general  and  correlative 
duties  of  passenger  carriers  and  their  passengers  are  thus  stated  :  — 

"  The  carrier's  contract  with  his  passenger  implies  :  first,  that  the  latter  shall 
obey  the  former's  reasonable  regulations  ;  second,  that  the  carrier  shall  have  his 
means  of  transportation  complete  and  in  order,  and  his  servants  competent. 

"  If  a  passenger  be  hurt  without  his  own  fault,  this  fact  raises  a  presumption 
of  negligence,  and  casts  the  onus  on  the  carrier. 

"  This  being  a  presumption  of  fact,  it  is  for  the  jury  to  determine. 

"  It  is  no  answer  to  an  action  by  a  passenger  against  a  carrier,  that  the  inju- 
ry was  caused  by  the  negligence  or  even  trespass  of  a  third  person.  The  parties 
are  bound  by  their  contract." 

Post,  §  176,  n.  6;  §  189. 

Woodward,  J. :  "  Whether  that  spot  in  the  road  was  not  so  commonly  infested 
with  cows  as  to  require  a  fence  or  cattle-guard  of  some  sort ;  whether  the  speed 

*372 


488  FENCES.  §127. 

company,  and  no  stipulation,  express  or  implied,  between  the 
company  and  the  land-owners  that  they  shall  maintain  fences, 

of  the  cars  was  not  too  great  for  a  curve,  exposed  at  all  times  to  the  incursions 
of  cattle;  'whether  the  engineer  discovered  the  cow  as  soon  as  he  might,  and 
used  his  best  endeavors  to  avert  the  collision  ;  in  a  word,  whether  the  accident 
was  such  as  no  foresight  on  the  part  of  the  company  or  its  servants  could  have 
prevented  ;  these  were  questions,  and  grave  ones,  too,  that  ought  to  have  been 
submitted  to  the  jury. 

"  The  learned  judge,  after  stating  correctly  the  extreme  care  and  vigilance 
which  the  law  exacts  of  railroad  companies,  asks  if  they  are  required  to  provide 
suitable  fences  and  guards  to  keep  cattle  off  the  road.  In  answering  his  ques- 
tion in  the  negative,  the  judge  seems  to  have  misapplied  the  reasoning  of  Judge 
Gibson  in  Skinner's  case,  7  Harris,  298;  1  Amer.  Law  Reg.  97.  That  was  an 
action,  by  the  owner  of  a  cow  killed  on  a  railroad,  t&  recover  her  value  from  the 
company  ;  and  the  doctrine  laid  down  was  that  the  owner  was  a  wrongdoer  in 
suffering  his  cow  to  wander  on  a  road  engaged  in  transporting  passengers,  and 
was  rather  liable  for  damages  than  entitled  to  recover  them.  The  owner  of  the 
cow  could  not  insist  that  the  company  should  fence  their  road  for  the  protection 
of  his  stock.  It  was  his  business  to  keep  his  cattle  within  his  own  bounds.  Now, 
such  reasoning  between  a  railway  company  and  a  trespasser  commends  itself  to 
every  man's  understanding,  because  it  tends  to  the  security  of  the  passenger.  If 
farmers  cannot  make  companies  pay  for  injuring  cattle,  but  they  involve  them- 
selves in  liability  for  suffering  their  cattle  to  run  at  large,  passengers  are  all  the 
more  secure  from  this  kind  of  obstruction. 

"  But  when,  notwithstanding  this  strong  motive  for  keeping  cattle  off  the 
road,  a  cow  is  found  there,  and  causes  an  injury  to  a  passenger  whom  the  com- 
pany have  undertaken  to  carry  safely,  is  it  an  answer  to  the  passenger  suing  for 
damages  that  the  owner  of  the  cow  had  no  right  to  let  her  run  at  large  ?  Grant 
that  she  was  unlawfully  at  large,  and  grant  the  owner  is  bound  to  indemnify  the 
company  for  the  mischief  she  caused,  yet  as  between  the  company  and  its  pas- 
senger, liability  is  to  be  measured  by  the  terms  of  their  contract. 

"  Having  undertaken  to  carry  safely,  and  holding  themselves  out  to  the  world 
as  able  to  do  so,  they  are  not  to  suffer  cows  to  endanger  the  life  of  the  passen- 
ger any  more  than  a  defective  rail  or  axle.  Whether  they  maintain  an  armed 
police  at  cross-roads,  as  is  done  by  similar  companies  in  Europe  ;  or  fence,  or 
place  cattle-guards  within  the  bed  of  their  road,  or  by  other  contrivance  exclude 
this  risk,  is  for  themselves  to  consider  and  determine.  We  do  not  say  they  are 
bound  to  do  the  one  or  the  other,  but  if,  by  some  means,  they  do  not  exclude  the 
risk,  they  are  bound  to  respond  in  damages  when  injury  accrues. 

"  Perhaps  the  passenger  would  have  his  remedy  against  the  owner  of  the  cow  ; 
it  is  clear,  from  Skinner's  case,  that  the  company  would,  but  the  passenger  has 
unquestionably  a  remedy  against  the  company.  If  he  be  injured  by  reason  of 
defective  machinery,  nobody  would  think  of  setting  up  the  liability  of  the  me- 
chanic who  furnished  the  bad  work,  as  a  defence  for  the  company  against  the 
claim  of  the  passenger.     Yet  it  would  be  a  defence  exactly  analogous  to  that 


§  127.  UPON   WHOM   THE   DUTY   RESTS.  489 

they  are  not  bound  to  do  so,  but  the  common-law  duty  of  keep- 
ing one's  cattle  at  home  res'  upon  the  land-owner.8  And  this 
view  is  probably  consistent,  in  principle,  with  the  cases  where 
such  a  duty  is  held  to  result  from  the  appraisal  of  land-damages, 
subject  to  the  expense  of  building  fences  being  borne  by  the 
company,  or  where  the  assessment  specifically  includes  the  ex- 
pense of  fencing,  and  that  has  not  been  paid. 

And  in  the  Irish  courts  the  company  is  only  bound  to  erect 
such  accommodation  works  for  the  benefit  of  the  land-owners  as 
are  a  compliance  with  the  specifications  in  the  award.  This  is 
true  even  where  the  railway  crosses  a  private  road  over  a  farm 
in  the  right  of  some  third  party  as  lessee  of  the  farm  obliquely, 

which  satisfied  the  court  in  this  case.  We  do  not  wish  to  be  understood  as  lay- 
ing down  a  general  rule,  that  all  railroad  companies  are  bound,  independently 
of  legislative  enactment,  to  fence  their  roads  from  end  to  end,  but  we  do  insist 
that  they  are  bound  to  carry  passengers  safely,  or  to  compensate  them  in  dam- 
ages. If  a  road  runs  through  a  farmer's  pasture  grounds,  Avhere  his  cattle  are 
wont  to  be,  possibly  as  between  the  company  and  the  farmer  the  latter  may  be 
bound  to  fence,  but  as  between  the  company  and  the  passenger  the  company  are 
bound  to  see  that  the  cattle  are  fenced  out.  If  cattle  are  accustomed  to  wander 
on  uninclosed  grounds,  through  which  the  road  runs,  the  company  are  bound  to 
take  notice  of  this  fact,  and  either  by  fencing  in  their  track,  or  by  enforcing  the 
owner's  obligation  to  keep  his  cattle  at  home,  or  by  moderating  the  speed  of  the 
train,  or  in  some  other  manner,  to  secure  the  safety  of  the  passenger.  That  is 
their  paramount  duty.  To  enable  them  to  perform  it  the  law  entitles  them  to  a 
clear  track.     7  Harris,  298  ;  12  lb.  496." 

8  Hurd  v.  Eut.  &  Bur.  Railw.,  25  Vt.  R.  116, 123;  New  York  &  Erie  Railw.  v. 
Skinner,  19  Penn.  St.  298  ;  Clark  v.  Syra.  &  Utica  Railw.,  11  Barb.  112;  Dean 
■v.  The  Sullivan  Railw.,  2  Foster,  316  ;  A.  &  S.  Railw.  v.  Baugh,  14  111.  R.  211. 
Where,  upon  appeal  from  the  first  appraisal  of  land  damages,  where  the  erection 
offences  had  been  specified,  that  was  vacated,  and  the  new  appraisal  made  no 
such  requirement  of  the  company,  it  was  held  that  the  presumption  was,  that  the 
whole  damages  were  appraised  in  money,  and  the  company  were  not  bound  to 
build  fences.  Morss  v.  Boston  &  Maine  Railw.,  2  Cush.  536  ;  Williams  v.  New 
York  Central  Railw.,  18  Barb.  222.  It  seems  impossible  to  estimate  damages 
for  taking  land  for  the  use  of  a  railway,  without  taking  into  the  account  the  ex- 
pense of  fencing.  Henry  v.  Pacific  Railw.,  2  Clarke,  228  ;  Mil.  &  Mis.  Railw. 
v.  Eble,  4  Chandler  (Wis.),  72  ;  Northeastern  Railw.  v.  Sineath,  8  Rich.  185  ; 
Matter  of  Rense.  &  Sar.  Railw.,  4  Paige,  533.  And  those  cases  which  hold  the 
company  not  bound  to  fence,  unless  required  to  do  so  by  statute  or  contract,  go 
upon  the  presumption  that  they  have  already  paid  the  expense  of  fencing  in 
the  land  damages.  See  Baltimore  &  Ohio  Railw.  v.  Lamborn,  12  Md.  R.  257  ; 
Mad.  &  Ind.  Railw.  v.  Kane,  11  Ind.  R.  375  ;  Stucke  v.  Milw.  &  Miss.  R.  Co.,  9 
Wise.  R.  202 ;  Richards  v.  Sacramento  Valley  R.  Co.,  18  Cal.  R.  351. 


490  FENCES.  §  127. 

and  the  award  adjudicating  the  claim  of  such  lessee  specified 
only  a  crossing  over  the  railway  as  a  "  level  crossing  "  at  a  given 
point,  and  the  company  gave  a  crossing  at  right  angles  with  the 
road,  which  did  not  connect  the  termini  of  the  road,  and  gave 
no  access  to  it ;  it  was  nevertheless  held  that  this  was  a  compli- 
ance with  the  award.9  This  is  certainly  not  a  fair  construction 
of  the  award,  as  applicable  to  the  subject-matter;  and  it  does 
not  require  any  gift  of  prophecy  to  foretell  that  the  doctrine  of 
the  case  will  not  be  followed  in  this  country,  and,  with  all  def- 
erence be  it  said,  it  ought  not  to  be  followed  anywhere. 

7.  And  in  some  of  the  states  the  rule  of  the  common  law,  in 
regard  to  the  duty  resting  upon  the  owner  of  domestic  animals 
to  restrain  them,  has  not  been  adopted  so  as  to  charge  the  owner 
with  negligence  for  suffering  them  to  go  at  large.10 

*  8.  But  it  is  held,  that  where  the  statute  imposes  upon  the 
company  the  duty  of  maintaining  fences  and  cattle-guards  at 
farm-crossings,  and  provides  that  until  such  fences  and  cattle- 
guards  shall  be  duly  made  the  corporation  and  its  agents  shall 
be  liable  for  all  damages  from  such  defect,  that  this  renders  a 
lessee  of  the  road  liable  for  injury  to  cattle  caused  by  his  operat- 
ing it  without  proper  cattle-guards  at  farm-crossings.11 

9  Mann  v.  Great  Southern  &  Western  R.,  9  Irish  Com.  Law  R.  105. 

10  Kerwhacker  v.  C,  C.  &  Cincinnati  Railw.,  3  Ohio  St.  172.  In  such  cases 
the  company  are  bound  to  use  reasonable  care  not  to  injure  animals  thus  right- 
fully at  large.  lb. ;  C,  C.  &  Cincinnati  Railw.  v.  Elliott,  4  Ohio  St.  4  74.  If  the 
owner  is  to  be  charged  with  remote  negligence  in  suffering  his  cattle  to  go  at 
large,  under  such  circumstances,  and  the  servants  of  the  company  are  guilty  of 
want  of  care  at  the  time  of  the  injury,  which  is  the  proximate  cause  of  it,  the 

■  company  are  still  liable.  lb. ;  Chicago  &  Miss.  Railw.  v.  Patchin,  16  111.  R.  198  ; 
Ind.,  &c.  Railw.  v.  Caldwell,  9  Ind.  R.  397. 

11  Clement  v.  Canfield,  28  Vt.  R.  302.  An  order  upon  a  railway  for  making 
farm  accommodations  must  specify  the  time  within  which  they  shall  be  made. 
Keith  v.  The  Cheshire  Railw.,  1  Gray,  G14.  And  where  the  act  allowing  a  rail- 
way company  to  lease  its  road  is  upon  the  express  condition  that  it  be  not 
therebv  exonerated  from  any  of  its  duties  or  liabilities,  this  must  include  the 
maintaining  of  fences.  Whitney  v.  Atl.  &  St.  Law.  Railw.,  44  Maine  R.  362. 
Where  a  railway  company  permits  its  cattle-guards  to  remain  filled  with  snow, 
so  that  cattle  which  have  strayed  upon  the  highway  without  any  negligence  on 
the  part  of  the  owner  pass  over  such  guards,  and  in  consequence  are  injured  by 
a  passing  train,  the  company  are  liable  for  the  damages.  Donnigon  v.  Ch.  & 
N.  W.  Railw.  Co.,  18  Wise.  R.  28. 

*373 


§  127.  UPON   WHOM   THE   DUTY   RESTS.  491 

9.  A  general  statute,  requiring  fences  to  be  maintained  by 
railways  upon  the  sides  of  their  road,  applies  to  land  acquired 
by  purchase  as  well  as  to  that  taken  in  invitumP 

10.  And  the  statute,  requiring  farm-crossings  "  for  the  use  of 
proprietors  of  land  adjoining,"  has  no  reference  to  the  quantity 
of  land  to  be  accommodated,  but  only  that  the  crossing  must  be 
useful.12 

11.  Where  the  statute  requires  the  company  to  erect,  at  farm- 
crossings,  bars  or  gates,  to  prevent  cattle,  &c,  from  getting  upon 
the  railway,  and  the  land-owner  who  is  entitled  to  such  protec- 
tion refuses  to  have  such  bars  or  gates  erected,  or  requests  the 
company  not  to  erect  them,  or  undertakes  to  erect  them  himself, 
he  cannot  maintain  an  action  against  the  company  for  not  com- 
plying with  the  statute.13 

12  Clarke  v.  The  Rochester,  L.  &  N.  F.  Railw.,  18  Barb.  350.  A  fence  built 
in  zigzag  form  of  rails,  half  the  length  upon  the  land  taken  for  the  railway,  and 
half  upon  the  land  of  the  adjoining  proprietor,  is  a  compliance  with  the  statute 
requiring  the  fence  to  be  built  upon  the  side  of  the  road.  Ferris  v.  Van  Bus- 
kirk,  18  Barb.  397.  And  where  the  statute  provides  that,  upon  certain  pro- 
ceedings, railway  companies  may  be  compelled  to  provide  farm-crossings  and 
cattle-passes  for  the  owners  of  land  intersected  by  the  company's  road,  and  no 
such  proceedings  have  been  taken,  the  company  are  not  liable  to  an  action  for 
damages  resulting  from  the  want  of  necessary  farm-crossings  and  cattle-passes, 
unless  it  appears  that  the  company  had  contracted  to  build  them.  Horn  v.  At- 
lantic &  St.  Lawrence  Railw.,  35  N.  H.  R.  169;  s.  C.  30  Id.  440.  Where  the 
railway  company  contract  to  build  fences  and  farm-crossings  this  obliges  them 
to  erect  bars  or  gates  at  such  crossings,  as  required  by  statute.  Poler  v.  N.  Y. 
Central  Railw.,  16  N.  Y.  Court  of  Appeal,  476. 

13  Tombs  v.  Rochester  &  Syracuse  Railw.,  18  Barb.  583.  But  where  the 
statute  requires  the  commissioners  to  prescribe  the  "  time  when  such  works  are 
to  be  made,"  and  the  owner  has  the  right,  by  statute,  to  recover  double  damages, 
"by  reason  of  failure  to  erect  the  works,"  and  the  commissioners  failed  to  pre- 
scribe the  time,  no  action  will  lie.  Iveith  v.  Cheshire  Railw.,  1  Gray,  614.  When 
the  statute  requires  fences  to  be  maintained  by  railway  companies,  it  must  be 
done  before  they  begin  running  trains.  Clark  v.  Vermont  &  Canada  Railw., 
28  Vt.  R.  103.  And  in  Gardiner  v.  Smith,  7  Mich.  R.  410,  it  was  held  to  attach 
as  soon  as  the  company  have  possession  of  the  land  for  construction.  Since  the 
decision  of  the  case  of  Clark  v.  Vt.  &  Canada  R.,  supra,  the  same  court  held,  that 
during  the  construction  of  a  railway  the  company,  in  such  case,  were  bound, 
either  by  fences  or  other  sufficient  means,  to  protect  the  fields  of  land-owners 
adjoining  the  railway.  And  whether  the  company  have  used  the  proper  pre- 
cautions to  prevent  the  escape  of  the  land-owner's  cattle  or  the  intrusion  of  other 
cattle,  during  such  construction,  is  a  question  of  fact,  in  each  particular  case  to 


492  FENCES.  §  127. 

12.  Railways  are  not  bound  to  maintain  fences  upon  their 
roads  so  as  to  make  them  liable  to  their  own  servants  for  injuries 
happening  in  consequence  of  the  want  of  such  fences.  And 
where  the  statute  makes  them  liable  for  all  injuries  done  to 
cattle,  &c,  by  *  their  agents  or  instruments  until  they  fence 
their  road,  the  liability  extends  only  to  the  owners  of  such  cat- 
tle or  other  animals,  and  this  liability  is  the  only  one  incurred.14 

13.  Where  the  statute  makes  railways  liable  for  cattle  killed 
by  them  without  reference  to  their  negligence,  all  that  is  neces- 
sary to  entitle  the  party  to  recover  is  to  show  the  fact  that  the 
cattle  were  killed  by  the  company  and  that  he  was  the  owner.15 

14.  And  where  it  is  the  duty  of  the  company  to  fence  the 
land  adjoining  their  road,  and  they  omit  to  do  so,  whereby  cat- 
tle escape  upon  the  track  and  are  killed,  they  are  liable  in  dam- 
ages without  any  proof  of  care  on  the  part  of  the  owner  to  re- 
strain them.10  And  evidence  of  notice  to  the  owner  that  the  ani- 
mal had  escaped  two  or  three  times  before  and  had  been  upon 
the  track,  is  immaterial.16  But  where  the  duty  of  maintaining 
fences  is  upon  the  land-owner,  and  cattle  escape  and  are  killed 

be  determined  by  the  jury.  Where  the  contractor  for  building  a  railway  took 
away  the  fences  in  course  of  construction,  and  the  sheep  of  the  land-owner  es- 
caped thereby  and  were  lost,  he  was  held  responsible  for  the  loss.  Gardner  v. 
Smith,  7  Mich.  R.  410.  And  it  will  make  no  difference  that  the  land-owner 
turned  the  sheep  into  the  lot  after  the  land  was  taken  possession  of  by  the  con- 
tractor and  he  was  constantly  throwing  down  the  fences  to  carry  forward  the 
work.  lb.  Holden  v.  Rut.  &  Bur.  Railw.,  30  Vt.  R.  297.  But  a  railway  com- 
pany cannot  fence  their  road  by  means  of  willows  set  upon  the  line  of  the  land 
taken,  and  which  in  growing  will  injure  the  adjoining  land  by  the  extension  of 
their  roots,  there  being  no  controlling  necessity  of  fencing  in  that  mode.  The 
company  were  accordingly  enjoined.     Brock  v.  Conn.  &  Pass.  R.,  35  Vt.  R.  373. 

14  Langlois  v.  Buffalo  &  Rochester  Railw.,  19  Barb.  364.  But  in  McMillan  v. 
Saratoga  &  Wash.  R.,  20  Barb.  449,  it  is  conceded  the  company  would  have 
been  liable  to  the  representative  of  their  engineer,  who  was  killed  by  the  train 
running  upon  cattle  which  came  upon  the  track  through  defect  offences,  which 
it  was  the  duty  of  the  company  to  maintain,  if  they  had  been  shown  to  have 
had  actual  knowledge  of  such  defect  before  the  injury.     See  ante,  §  1G5. 

15  Nashville  &  Ch.  Railw.  v.  Peacock,  25  Alabama  R,  229.  See  also  Williams 
v.  New  Albany  &  Salem  Railw.,  5  Ind.  R.  Ill  ;  Lafayette  &  Ind.  Railw.  v. 
Shriner,  6  Ind.  (Porter)  R.  141.  In  this  case  it  was  held,  that  such  a  statute 
had  no  reference  to  the  case  of  cattle  killed  at  a  road-crossing,  as  that  was  a 
place  which  could  not  be  protected  either  by  fences  or  cattle-guards. 

16  Rogers  v.  Newburyport  Railw.,  1  Allen,  16. 

*374 


§  127.  UPON   WHOM   THE   DUTY   RESTS.  493 

upon  the  track,  the  company  are  not  liable  without  proof  of  due 
care  on  the  part  of  the  owner  to  restrain  them.17  The  statute, 
requiring  railways  thereafter  constructed  to  fence  their  roads  on 
both  sides,  does  not  apply  to  a  road  in  the  process  of  construc- 
tion at  the  date  of  the  act.17 

The  statute,  requiring  railways  to  fence  their  roads,  and  mak- 
ing them  liable  for  injury  to  cattle  without  regard  to  the  negli- 
gence of  the  owner,  or  his  being  an  owner  of  adjoining  land,  is 
a  police  regulation.18  But  this  liability  does  not  extend  to  ani- 
mals injured  by  fright.19 

15.  Railway  companies  are  not  liable  for  injuries  to  animals 
at  highway  crossings,  although  the  crossing  had  been  abandoned 
by  the  public  for  two  years  and  the  highway  changed,  it  not 
appearing  to  have  been  vacated  in  the  mode  prescribed  by 
statute,  so  as  to  justify  the  company  in  fencing  their  track 
across  it.20 

16.  Railway  companies  in  England  are  not  held  responsible 
for  injuries  to  cattle  transported  to  their  stations,  in  consequence 
of  injury  by  escaping  upon  the  track  through  defects  of  the  fence 
about  the  cattle-yard  ;  nor  for  the  cattle  being  frightened  by  one 
of  the  porters  of  the  company  coming  out  of  the  station  into  the 
cattle-yard,  having  a  lantern,  such  as  was  ordinarily  used,  in 
his  hand  ;  it  being  no  evidence  of  negligence  on  the  part  of  the 
company's  servants.21  It  was  considered  here  that  the  cattle 
had  been  delivered  to  the  plaintiff,  and  it  was  his  fault,  since  he 
knew  the  yard  was  not  fenced,  and  had  himself  pronounced  it 
an  unsafe  place,  not  to  guard  against  their  escape. 

17.  It  appeared  in  one  case22  that  the  plaintiff's  horse  had  es- 

17  Stearns  v.  Old  Colony  &  Fall  River  Railw.,  1  Allen,  493. 

18  Indianapolis  &  C.  Railw.  v.  Townsend,  10  Ind.  R.  38 ;  Jefferson  Railw.  v. 
Applegate,  Id.  49 ;  Ind.  &  C.  R.  v.  Meek,  Id.  502 ;  Jeff.  Railw.  v.  Dougherty, 
Id.  549. 

19  Peru  Railw.  v.  Haskett,  10  Ind.  R.  409.  And  the  company  are  not  liable 
for  cattle  killed  in  the  highway  without  their  fault,  where  the  track  of  the  road 
was  fully  fenced.     Northern  Ind.  R.  v.  Martin,  10  Ind.  R.  460. 

20  Indian.  Railw.  v.  Gapen,  10  Ind.  R.  292. 

21  Roberts  v.  Great  Western  Railw.,  4  C.  B.  (N.  S.)  506. 

22  Holden  v.  Rutland  &  Burlington  Railw.,  30  Vt.  R.  297.  Where  the  plain- 
tiff had  knowledge  at  evening  that  his  fence  was  in  danger  of  being  carried  off 
by  a  flood,  and  knew  his  cattle  would  in  consequence  be  liable  to  come  upon  the 


494  FENCES.  §  127. 

caped  in  the  night-time  from  his  pasture  upon  the  railroad  track 
on  account  of  the  want  of  proper  fence  along  the  line  of  the 
road,  and  was  found  in  the  morning  a  mile  from  the  plaintiff's 
land  in  a  rocky  pasture  seriously  injured  in  the  leg ;  and  there 
was  some  evidence  tending  to  show  that  the  injury  was  received 
in  the  pasture  where  he  was  found.  The  court  charged  the 
jury  that  if  they  were  satisfied  there  was  a  clear  connection  be- 
tween the  escape  of  the  horse  and  the  injury  received,  the  plain- 
tiff was  entitled  to  recover.  This  was  held  erroneous  in  not  re- 
quiring the  jury  to  discriminate  between  a  direct  and  a  remote 
connection  between  the  neglect  of  the  company  and  the  damage 
to  the  plaintiff's  horse,  as  he  could  only  recover  upon  the  for- 
mer ground. 

18.  In  this  case22  the  plaintiff's  cows  were  killed  by  escaping 
from  the  plaintiff's  pasture,  and  going  into  a  piece  of  land  leased 
by  the  plaintiff  to  the  defendants,  to  be  used  by  them  as  a  wood- 
yard,  and  from  that  upon  the  defendants'  track,  for  want  of  fence 
about  the  wood-yard.  The  evidence  left  it  doubtful  whether  the 
defendants  were  to  have  the  exclusive  occupancy  of  the  wood- 
yard,  or  were  to  fence  the  same,  as  between  them  and  the  plain- 
tiffs :  It  was  held  that,  in  order  to  recover  of  the  defendants  for 
killing  the  cows,  it  should  be  found  by  the  jury  that  it  was  the 
duty  of  the  defendants  to  maintain  the  fence  for  defect  of  which 
they  escaped  upon  the  defendants'  track. 

19.  The  statute  of  New  York,  requiring  railways  to  maintain 
cattle-guards  at  road-crossings,  applies  to  streets  in  a  village,  but 
not  so  as  to  impede  the  passage  along  the  streets,  or  render  them 
unsafe  for  persons  passing.23 

railway  track,  and  refused  to  remove  them  from  the  pasture,  and  before  morning 
the  fence  was  removed,  and  the  cattle  came  upon  the  track  and  were  killed  by 
a  passing  train,  it  was  held  the  plaintiff  could  not  recover.  Michigan,  &c,  R. 
Co.  v.  Shannon,  13  Ind.  R.  171.  There  are  numerous  cases  in  this  state  where 
matters  of  practice  under  the  statute  of  that  state  are  discussed.  Wright  v. 
Gossett,  15  Ind.  R.  119;  Ind.,  &c.  Railw.  v.  Fisher,  Id.  203;  Same  v.  Kercheval 
16  Id.  84  ;  Ohio  &  Miss.  Railw.  Co.  v.  Quier.  Id.  440.  See  also  19  Id.  42 ;  20 
Id.  229;  23  Id  438;  24  Id.  139.  And  it  has  been  held  that  all  animals  killed 
at  one  time  constitute  a  separate  and  indivisible  cause  of  action,  and  two  of 
these  cannot  be  united  to  give  jurisdiction  to  the  Circuit  Court.  Ind.  &  Cin.  R. 
Co.  v.  Kercheval,  24  Ind.  R.  139. 
23  Brace  v.  N.  Y.  Central  Railw.  Co.,  27  N.  Y.  R.  269. 


§  127.  UPON   WHOM   THE   DUTY  RESTS.  495 

20.  It  has  often  been  declared  that  railway  companies,  to  re- 
lieve themselves  from  responsibility  for  damage  caused  by  their 
trains  to  domestic  animals,  must  not  only  build  but  maintain  in 
good  repair  all  fences  and  cattle-guards  required  of  them  by 
law.24  If  such  structures  are  allowed  to  fall  into  decay,  or  are 
accidentally  thrown  open  or  thrown  down,  and  not  closed  and 
restored  within  a  reasonable  time,  the  company  are  responsible 
to  the  owner  of  cattle  injured  by  such  neglect,  provided  he  is 
not  in  fault  himself.24  But  even  where  such  fences  and  cattle- 
guards  are  properly  maintained,  the  railway  companies  will  be 
held  responsible  for  all  damage  to  animals  caused  by  the  wilful 
or  negligent  conduct  of  their  agents  and  employees. 

21.  In  New  Hampshire  the  common-law  rule  of  responsibility 
for  damage  only  as  to  cattle  rightfully  in  the  adjoining  fields  is 
maintained  in  regard  to  the  duty  of  railway  companies  to  fence 
their  track,  and  an  omission  of  this  duty  will  not  render  them 
responsible  for  an  injury  happening  to  cattle  trespassing  upon 
the  track  or  upon  the  lands  adjoining.25  It  is  here  held  that 
railway  companies  are  not  responsible  to  the  owner  of  lands  ad- 
joining their  track  for  damage  done  upon  such  lands  by  cattle 
suffered  by  their  owners  to  run  at  large  in  the  highway,  and 
thence  escaping  upon  the  railway  track,  and  thus  coming  upon 
such  adjoining  lands,  through  defect  of  fences  which  it  is  the  duty 
of  the  company  to  maintain.  But  this  seems  questionable.  We 
should  have  said,  without  much  examination  or  reflection,  that 
although  the  owners  of  the  cattle  are  clearly  responsible  for  all 
such  damage,  it  is  not  quite  certain  the  company  may  not  also 
be  held  responsible  for  the  same  damage  to  the  land-owner,  in- 
asmuch as  the  law  casts  upon  them  the  duty  of  maintaining  the 
fences  against  the  land,  and  the  damage  occurred  in  consequence 
of  the  omission.  But  the  court  unquestionably  took  the  surest 
course  to  visit  the  responsibility,  in  the  first  instance,  where  it 
ultimately  belongs.  It  is  here  further  said  that  railways  are 
bound  to  maintain  proper  cattle-guards  at  farm-crossings,  and 
are  responsible  for  all  damages  to  cattle  rightfully  there  by  such 
omission,  but  are  not  responsible  for  any  injury  to  cattle  suffered 

24  McDowell  v.  N.  Y.  Central  Railw.,  37  Barb.  195. 
2i  Chapin  v.  Sullivan  R.  Co.,  39  N.  H.  R.  53. 


496  FENCES.  §  127. 

to  go  at  large  in  the  highway,  or  wrongfully  there  for  any  cause, 
although  such  injury  may  occur  by  reason  of  the  omission  to 
build  and  maintain  such  cattle-guards.26 

22.  A  railway  company  are  responsible  for  all  damage  done 
to  cattle  rightfully  in  lands  adjoining  the  railway  track  through 
defect  of  fences  which  the  company  are  bound  to  maintain  ;  and 
they  cannot  excuse  themselves  from  responsibility  by  showing 
that  the  road  is  operated  for  the  benefit  of  other  parties,  and  es- 
pecially so  long  as  it  is  done  under  the  direction  and  control  of 
the  company.27 

23.  The  building  of  fences  along  the  line  of  a  railway  track 
is,  no  doubt,  in  regard  to  the  security  of  travel  thereon,  to  be 
regarded  as  a  matter  of  police,  and  a  duty  which  the  companies 
cannot  shift  upon  others  by  contracts  to  maintain  such  fences.28 
And  it  makes  no  difference  by  whom  such  fences  were  built,  — 
the  company  is  bound  to  maintain  them  in  good  condition  at  all 
times.29 

24.  A  land-owner,  who  by  contract  with  the  company  is 
bound  to  maintain  the  fences  along  his  land,  cannot  recover  of 
the  company  for  damage  to  cattle  by  reason  of  defect  of  fences, 
unless  he  show  negligence  on  the  part  of  the  company.30  But 
a  railway  company  is  responsible  for  cattle  killed  by  their  trains 
at  a  mere  private  road-crossing,  which  was  not,  but  might  have 
been,  easily  fenced  by  them.31  This  case  was  controlled  by  the 
statute.  A  sufficient  fence  in  Indiana  is  held  to  be  such  an  one 
as  good  husbandmen  usually  keep.32  But  in  many  of  the  states 
what  shall  constitute  legal  fences  is  defined  by  statute. 

25.  Railway  companies  are  not  responsible  for  damage  accru- 
ing to  domestic  animals  from  want  of  fences,  at  points  which  do 
not  properly  admit  of  being  fenced,  as  in  the  immediate  vicinity 

26  Post,  §  128,  pi.  7. 

27  Wyman  v.  Pen.  &  Ken.  R.  Co.,  46  Me.  R.  162. 

28  New  Albany  &  Salem  R.  Co.  v.  Tilton,  12  Ind.  R.  3  ;  Same  v.  Maiden,  Id. 
10.    See  also  Illinois  Central  R.  Co.  v.  Swearingen,  33  111.  R.  389. 

29  New  Albany,  &c.  Railw.  Co.  v.  Pace,  13  Ind.  R.  411. 

30  Terre  Haute,  &c.  R.  Co.  v.  Smith,  16  Ind.  R.  102. 

31  Ind.  Central  Railw.  v.  Leamon,  18  Ind.  R.  173. 

32  Toledo  &  Wabash  Railw.  Co.  v.  Thomas,  18  Ind.  R.  215.  If  such  a  fence 
is  maintained  the  company  is  only  liable  as  at  common  law  for  negligence. 


§127.  UPON   WHOM   THE   DUTY   RESTS.  497 

of  engine-houses,  machine-shops,  car-houses  and  wood-yards.33 
And  where  the  fence  along  a  railway  line  is  destroyed  by  una- 
voidable accident,  as  by  fire,  and  is  repaired  in  a  reasonable  time, 
but  in  the  mean  time  cattle  get  at  large  by  reason  of  the  want 
of  fence  and  are  injured,  the  company  will  not  be  held  respon- 
sible.31 

26.  By  statute  in  this  state  railway  companies  are  made  re- 
sponsible for  animals,  but  not  for  persons,  injured  upon  their 
roads,  when  they  might  be,  but  are  not,  fenced,  irrespective  of 
the  question  of  negligence.  But  when  a  proper  fence  is  main- 
tained in  all  places  where  it  is  required  to  be,  the  company  are 
not  responsible  for  animals  injured  except,  as  at  common  law, 
where  there  is  negligence  on  their  part  conducing  to  the  result, 
and  none  on  the  part  of  the  owner  of  that  character.35 

27.  The  requirements  of  railway  companies  as  to  fencing 
their  road  is  not  intended  chiefly  for  the  protection  of  domestic 
animals,  but  for  the  security  of  travel  and  transportation,  and 
where  the  fence  is  thrown  down  by  third  persons  without  the 
knowledge  of  the  company  that  it  is  down,  and  cattle  stray  upon 
the  track  and  receive  injury,  the  company  is  not  responsible  for 
the  damage.36 

28.  Where  the  plaintiff  is  guilty  of  negligence  which  imme- 
diately and  directly  contributes  to  the  injury  to  cattle,  he  can- 
not recover  of  a  railway  company  unless  by  the  exercise  of  ordi- 
nary care  and  prudence  at  the  time  the  company  might  have 
avoided  inflicting  the  injury.37 

29.  Where  the  railway  company  stipulated  with  an  adjoin- 
ing land-owner  to  construct  five  "  cowpits "  or  cattle-guards 
upon  his  land,  but  did  it  in  so  imperfect  a  manner  as  to  be  of  no 
value,  and  the  land-owner  brought  suit  for  the  breach  of  con- 
tract, it  was  held  he  could  only  recover  such  damage  as  he  had 

33  Ind.  &  Cin.  Railw.  Co.  v.  Oestel,  2u  Ind.  R.  231  ;  Galena  &  Chicago  Union 
R.  Co.  v.  Griffin,  31  111.  R.  303. 

34  Toledo  &  Wabash  R.  Co.  v.  Daniels,  21  Ind.  R.  256  ;  Ind.,  Pitts.  &  Clev. 
R.  Co.  v.  Truitt,  24  Id.  162. 

35  Thayer  v.  St.  Louis,  Alton,  &c.  Railw.  Co.,  22  Ind.  R.  26  ;  McKinley  v. 
Ohio,  &c.  Railw.  Co.,  Id.  99,  where  it  is  held  it  will  make  no  difference  as  to  the 
responsibility  of  the  company  that  the  road  is  operated  by  a  receiver. 

36  Toledo,  &c.  Railw.  v.  Fowler,  22  Ind.  R.  316. 

37  Ind.  &c.  Railw.  v.  Wright,  22  Ind.  R.  376. 
VOL.  I.  32 


498  FENCES.  §  127 

sustained  up  to  the  time  of  bringing  the  action,  unless  where  he 
had  himself  constructed  the  cattle-guards  in  a  proper  manner, 
when  he  might  also  recover  the  expense  of  such  construction.38 

30.  Where  bars  are  erected  at  a  farm-crossing  at  the  request 
of  the  land-owner,  it  is  his  duty  to  keep  them  up ;  and  if  he 
fails  to  do  so,  whereby  his  own  cattle  or  those  of  third  persons 
straying  into  his  field  get  upon  the  track  and  are  injured,  the 
owners  of  such  cattle  cannot  recover  of  the  company  if  guilty 
of  no  fault  at  the  time  of  the  injury.39 

31.  A  railway  running  along  the  line  of  a  highway  is  required 
to  be  fenced  with  especial  care  and  watchfulness.40  But  where 
an  animal  passes  upon  the  track  of  a  railway  at  the  crossing  of 
a  highway,  where  it  would  not  be  proper  or  practicable  to  make 
any  effectual  fence  or  cattle-guards,  and  is  injured,  the  company 
is  not  responsible  unless  in  fault  in  the  management  of  the  train 
at  the  time.41  And  it  was  here  considered  that,  notwithstanding 
the  facts  that  the  plaintiff  was  guilty  of  negligence  in  permitting 
the  animal  to  stray  upon  the  track,  and  was  not  an  adjoining 
proprietor,  he  might  recover  for  an  injury  thereto  by  the  cars  of 
a  railway  company  if  their  track  was  not  fenced.  But  where 
the  owner  of  a  blind  horse  turned  him  out  upon  the  common 
of  a  town,  through  which  a  railway  ran,  where  he  was  killed  by 
a  passing  train,  and  the  track  was  not  fenced,  it  was  held  he 
could  not  recover,  on  account  of  his  own  gross  negligence.42 

32.  In  actions  for  injury  to  domestic  animals  under  the  stat- 
ute against  railway  companies,  it  should  appear  affirmatively 
that  the  case  comes  within  the  provisions  of  the  statute.  Thus 
where  railways  are  required  to  fence  their  roads  within  six 
months  after  opening  them  for  use,  on  penalty  of  being  respon- 
sible for  all  cattle  injured,  it  should  appear,  in  an  action  for  in- 

38  Indiana  Central  Railw.  v.  Moore,  23  Ind.  R.  14. 
89  Indianapolis  R.  Co.  v.  Adkins,  23  Ind.  R.  340. 

40  Ind.  &  Cin.  R.  Co.  v.  Guard,  24  Ind.  R.  222  ;  Same  v.  McKinney,  Id.  283. 

41  Ind.  &  Cin.  R.  Co.  v.  McKinney,  24  Ind.  R.  283. 

42  Knight  v.  Toledo  &  Wabash  R.  Co.,  24  Ind.  R.  402.  A  railway  company 
is  not  bound  to  resort  to  any  extraordinary  means  to  insure  the  fence  being  kept 
up  along  its  line  night  and  day  ;  reasonable  diligence  is  all  that  is  required.  Il- 
linois Central  Railw.  v.  Dickerson,  27  111.  R.  55  ;  Same  v.  Phelps,  29  Id.  447  ; 
Same  v.  Swearingen,  33  Id.  289. 


§128. 


AGAINST   WHAT   CATTLE   BOUND   TO   FENCE. 


499 


jury  by  reason  of  such  omission,  that  the  six  months  had  ex- 
pired.43 So  if  it  is  claimed  that  the  injury  occurred  by  reason 
of  the  omission  to  fence,  it  should  appear  that  it  occurred  at  a 
point  in  the  road  where  the  company  were  not  excused  from 
fencing.44  To  constitute  a  town  or  Tillage  within  the  statute 
it  is  not  requisite  there  should  be  any  plot  of  the  same  dedicat- 
ing streets,  &c.  in  the  manner  provided  by  statute.44 

33.  An  owner  of  mules  killed  upon  the  track  of  a  railway  by 
an  engine  and  cars,  cannot  recover  therefor,  even  where  they 
escaped  from  a  properly  fenced  enclosure  without  his  knowledge, 
and  were  on  the  highway  at  its  intersection  with  the  railway.45 


SECTION    II. 


Against  what  Cattle  the  Company  is  bound  to  Fence. 


1 .  At  common  law  every  owner  bound  to  re- 

strain his  own  cattle. 

2.  And  if  bound  to  fence  against  others'  land, 

it  extends  only  to  those  cattle  rightfully 
upon  such  land. 

3.  Company  may  agree  with  land-owner  to 

fence,  and  this  will  excuse  damage  to 
cattle. 
n.  5.  Review  of  cases  uppn  this  subject. 

4.  Owner  may  recover  unless  guilty  of  express 

neglect. 


5.  Comment  upon  the  last  case. 

6.  Statement  of  case  in  Massachusetts. 

7.  Further  comment  on  the  last  case. 

8.  Rule  of  responsibility  as  held  in  Ken- 

tucky. 

9.  Rule  laid  down  in  Ohio. 

10.  Rule  in  Indiana. 

1 1 .  Distinction  between  suffering  cattle  to  go 
at  large  and  accidental  escape. 


§  128.  1.  At  common  law  the  proprietor  of  land  was  not 
obliged  to  fence  it.  Every  man  was  bound  to  keep  his  cattle 
upon  his  own  premises,  and  he  might  do  this  in  any  manner  he 
chose.1 

2.   And  where,  by  prescription  or  contract,  or  by  statute,  a 

43  Ohio  &  Miss.  R.  Co.  v.  Meisenhiemer,  27  111.  R.  30  ;  Same  v.  Jones,  Id.  41. 

44  Illinois  Central  Railw.  Co.  v.  Williams,  27  111.  R.  48. 
tt  North  Penri.  Railw.  Co.  v.  Rehmon,  49  Penn.  St.  101. 

1  Dovaston  v.  Payne,  2  H.  Bl.  R.  527 ;  Rust  v.  Low,  6  Mass.  R.  90,  99  ;  Jack- 
son v.  Rut.  &  Bur.  Railw.,  25  Vt.  R.  157,  158 ;  Wells  v.  Howell,  19  Johns.  385; 
Manchester,  Sh.  &  Lincolnsh.  Railw.  v.  Wallis,  25  Eng.  L.  &  Eq.  373 ;  Morse  v. 
Rut.  &  Bur.  Railw.,  27  Vt.  R.  49 ;  Lafayette  &  Ind.  Railw.  v.  Shriner,  6  Porter 
(Ind.),  141 ;  Woolson  v.  Northern  Railw.,  19  N.  H.  R.  267.  Indianapolis  &  Cin. 
Railw.  v.  Kinney,  8  Ind.  R.  402. 


500  FENCES.  §  128. 

land  proprietor  is  bound  to  fence  his  land  from  that  of  the  ad- 
joining proprietor,  it  is  only  as  to  cattle  rightfully  in  such  ad- 
joining land.2     The  same  rule  has  been  extended  to  railways.3 

*  And  it  has  been  considered  in  some  cases  that  where  no 
statute,  in  terms,  imposes  upon  railways  the  duty  of  fencing  their 
roads,  that  they  are  not  bound  to  fence,  and  that  the  owner  of 
cattle  is  bound  to  keep  them  off  the  road,  or  liable  to  respond 
in  damages  for  any  injury  which  may  be  caused  by  their  stray- 
ing upon  the  railway,4  and  as  a  necessary  consequence  cannot 
recover  for  any  damage  which  may  befall  them.5 

2  Same  cases  above ;  Lord  v.  Wormwood,  29  Maine  R.  282. 

3  Ricketts  v.  East  &  West  India  Docks  &  Birmingham  J.  Railw.,  12  Eng.  L.  & 
Eq.  520 ;  Perkins  v.  Eastern  Railw.  Co.,  29  Maine  R.  307  ;  Towns  v.  Cheshire 
Railw.,  1  Foster,  363;  Cornwall  v.  Sullivan  Railw.,  8  Foster,  161. 

4  Vandegrift  v.  Rediker,  2  Zab.  185 ;  Tonawanda  Railw.  v.  Hunger,  5  Denio, 
255  ;  s.  c.  affirmed  in  error,  4  Comst.  349  ;  Clark  v.  Syracuse  S^TJtica  Railw., 
11  Barb.  112;  Williams  v.  Mich.  Central  Railw.,  2  Hick  R.  259;  New  York  & 
Erie  Railw.  v.  Skinner,  19  Penn.  St.  298. 

5  Brooks  v.  New  Yoi-k  &  Erie  Railw.,  13  Barb.  594.  In  this  case  it  was  held 
that  the  statute  requiring  railways  to  maintain  cattle-guards  at  road-crossings 
did  not  extend  to  farm-crossings.  So  too  it  has  been  held  that  the  statute  re- 
quiring gates  or  cattle-guards  at  road-crossings  does  not  extend  to  street-cross- 
ings. Vanderkar  v.  Rensselaer  &  Sara.  Railw.,  13  Barb.  390.  In  Central 
Military  Track  Railw.  v.  Rockafellow,  17  Illinois  R.  541,  the  rule  is  laid  down 
in  regard  to  cattle  straying  upon  a  railway,  that  they  are  to  be  regarded  as 
wrongfully  upon  the  road,  and  the  owner  cannot  recover  for  an  injury,  unless 
caused  by  wilful  misconduct  or  gross  negligence.  The  court  say,  "  A  railroad 
company  has  a  right  to  run  its  cars  upon  its  track  without  obstruction,  and  an 
animal  has  no  right  upon  the  track  without  consent  of  the  company,  and  if  suf- 
fered to  stray  there,  it  is  at  the  risk  of  the  owner  of  the  animal." 

And  in  Illinois  Central  Railw.  v.  Reedy,  17  Illinois  R.  580,  the  same  court 
say,  "  Animals  wandering  upon  the  track  of  an  unenclosed  railroad,  are  strictly 
trespassers,  and  the  company  is  not  liable  for  their  destruction,  unless  its  ser- 
vants are  guijty  of  wilful  negligence,  evincing  reckless  misconduct."  "  The 
burden  of  proof  is  on  the  plaintiff  to  show  negligence,  the  mere  fact  that  the 
animal  was  killed"  is  not  enough. 

In  Hunger  v.  Tonawanda  Railw.,  4  Comst.  349,  it  is  held,  that  cattle  escaping 
from  the  enclosure  of  the  owner  and  straying  upon  the  track  of  a  railway,  are  to 
be  regarded  as  trespassers,  and  no  action  can  be  maintained  against  the  com- 
pany if  the  negligence  of  the  plaintiff  concurred  with  that  of  the  company  in 
producing  an  injury  to  the  cattle  while  in  that  situation  ;  and  that  the  law 
charges  the  owner  of  cattle,  in  such  case,  with  negligence,  although  his  enclos- 
ures are  kept  well  fenced,  and  he  is  guilty  of  no  actual  negligence,  in  suffering 
♦375 


§  128.  AGAINST   WHAT   CATTLE   BOUND   TO   FENCE.  501 

'  *  3.  But  where  a  railway  is  not  obliged  to  fence  unless  re- 
quested by  the  land-owner,  and  had  agreed  with  such  owner 
that  they  should  not  fence  against  his  land,  and  a  cow  placed  in 
such  lands  strayed  upon  the  track  of  the  road  and  was  killed  by 
a  train,  it  was  held  the  owner  of  the  cow,,  having  by  his  own 
fault  contributed  to  the  loss,  could  not  recover  of  the  com- 
pany.6 

4.  In  a  late  case  in  Connecticut,7  it  was  decided  that  where 
cattle  are  at  large  without  the  fault  of  the  owner,  and  go  upon  the 
track  of  a  railway,  and  are  injured  through  the  negligence  of  the 
company  in  the  management  of  their  train,  the  owner  is  not  pre- 
cluded from  recovering  damages,  because  the  cattle  were  tres- 
passers upon  the  railway.  In  order  to  preclude  the  plaintiff 
from  recovery  in  such  case,  he  must  have  been  guilty  of  express, 
and  not  merely  of  constructive  wrong  in  suffering  the  cattle  to 
go  at  large. 

the  cattle  to  escape.  And  it  was  accordingly  held,  that  the  company  was  not 
liable,  under  such  circumstances,  for  negligently  running  an  engine  upon  and 
killing  the  plaintiff's  cattle. 

The  same  principles  substantially  are  maintained  in  the  same  case,  5  Denio, 
*255.  And  it  is  further  held  here,  that  where  the  general  statutes  of  the  state 
allow  towns  to  prescribe  what  shall  be  a  legal  fence,  and  when  cattle  may  run 
at  large  in  the  highway,  and  which  forbid  a  recovery' for  a  trespass  by  cattle 
lawfully  in  the  highway,  by  one  whose  fences  do  not  conform  to  the  town  ordi- 
nance upon  the  subject,  this  will  have  no  application  to  railways,  and  that  cattle 
allowed  to  run  in  the  highway  by  such  ordinance,  and  which,  while  so  running 
in  the  highway,  enter  upon  the  lands  of  a  railway  at  a  road-crossing,  where 
there  is  no  obstruction  against  the  intrusion  of  cattle,  are  to  be  regarded  as 
trespassers. 

s  Tower  v.  Providence  and  Worcester  Railw.,  2  Rhode  Island  R.  404. 

T  Isbell  v.  New  York  &  New  H.  Railw.  Co.,  27  Conn.  R.  393.  The  courts  in 
Indiana,  in  hearing  cases  in  error,  feel  bound  to  presume  that  the  court  below 
applied  the  testimony  correctly  in  determining  localities  and  geographical 
boundaries,  and  especially  in  matters  affecting  jurisdiction,  as  the  local  courts 
would  more  naturally  understand  these  questions  than  another  less  familiar 
with  the  facts.  Ind.,  &c.  Railw.  Co.  v.  Moore,  16  Ind.  R.  43  ;  Same  v.  Snelling, 
Id.  435. 

By  the  law  of  Indiana,  before  the  statute  of  1859,  it  must  appear,  in  order 
to  recover  damages  for  animals  killed  or  injured  by  a  railway  company,  that  it 
occurred  through  the  negligence  of  the  company,  and  without  the  immediate  fault 
of  the  owner.  Wright  v.  Ind.,  &c.  Railw.  Co.,  18  Ind.  R.  168;  Toledo  &  Wa- 
bash Railw.  Co.  v.  Thomas,  Id.  215.     The  act  of  1859  is  prospective  only.    Ind. 

*376 


502  •         FENCES.  §  128. 

5.  We  could  not  dissent  from  the  propositions  maintained  in 
the  preceding  case,  notwithstanding  some  hesitation  in  regard  to 
the  proper  construction  placed  by  the  court  upon  the  facts  found 
in  the  case.  The  law  of  every  case  must  be  judged  of  by  the 
facts  which  the  court  assume  to  be  established  in  deciding  it.  It 
would  be  as  unfair  to  criticise  the  decision  of  a  court,  upon  a 
new  construction  of  the  facts,  as  it  would  upon  a  different  state 
of  the  testimony  at  a  different  trial.  The  decision  of  a  court  is 
good  or  bad  upon  the  facts  assumed  by  the  judge,  and  no  fair- 
minded  man  will  attempt  to  escape  from  the  weight  of  an  author- 
ity by  assuming,  or  even  proving,  that  the  judge  took  a  mistaken 
view  of  the  facts.  It  is  merely  an  attempt  to  balance  one  as- 
sumed blunder  of  the  court,  by  showing  that  they  fell  into  an- 
other in  an  opposite  direction.  A  decision  is  good  upon  the 
ground  upon  which  it  is  placed,  or  it  is  wrong  upon  every  ground. 

6.  "We  have  said  thus  much  in  order  to  state  that  the  case  of 
Browne  v.  Providence,  Hartford,  and  Fishkill  Railway  Company,8 
which  decides  that  a  railway  corporation,  which  is  obliged  by  law 
to  make  all  needful  fences  and  cattle-guards  upon  the  sides  of  its 
track,  is  liable  for  injuries  by  its  engines  to  cattle  straying  at 
large  through  the  land  of  a  stranger  upon  its  road,  by  reason  of 
its  negligence  in  not  erecting  fences  and  cattle-guards  as  required 
by  statute,  seems  clearly  to  have  assumed  a  different  rule  of  re- 
sponsibility, as  against  railway  companies,  from  that  which  has 
ordinarily  been  before  applied  to  all  lawful  business,  as  between 
adjoining  proprietors.  Indeed,  the  court  distinctly  assume  the 
position,  that  the  common-law  responsibility  imposed  upon  ad- 
joining land-owners  is  not  sufficient,  and  that  railway  companies 
must  be  held  to  a  higher  degree  of  responsibility,  "  on  account 
of  the  new  circumstances  and  condition  of  things  arising  out  of 
the  general  introduction  and  use  of  railways  in  the  country," 
and  that  the  requirements  of  the  railway  companies  in  regard  to 
fencing  and  cattle-guards  "  were  designed  for  the  safety  of  the 

&c.  Railw.  Co.  v.  Elliott,  20  Id.  430.  It  was  here  made  a  question  whether  a 
statute  awarding  damages  to  the  owners  of  animals  killed  or  injured  by  the  roll- 
ing stock  of  any  railway,  applied  equally  to  freight  as  to  passenger  trains,  and 
it  was  held  that  it  did.  The  wonder  is  that  any  such  question  should  ever  be 
made.  We  never  before  supposed  there  could  be  any  doubt  in  regard  to  it, 
8  12  Gray,  55.     Ante,  §  127,  pi.  21,  and  notes. 


§  128.  AGAINST   WHAT   CATTLE   BOUND   TO   FENCE.  503 

public,  and  for  the  protection  of  all  domestic  animals,  whether 
rightfully  or  wrongfully  out  of  their  owners'  enclosure." 

7.  This  decision  certainly  has  the  credit  of  meeting  the  ques- 
tion involved  fairly  and  of  wrestling  manfully  with  its  difficulties, 
and  of  placing  it  upon  the  only  plausible  ground,  that  the  busi- 
ness was  so  dangerous  to  the  public  that  it  merited  a  more  ex- 
tended construction,  where  railways  are  required  to  fence  their 
roads,  than  where  other  land-owners  were  required  to  do  the 
same  thing.  We  had  always  supposed  that  railways  were  re- 
quired to  fence  their  roads  for  the  protection  of  their  passengers, 
and  of  persons  and  animals  rightfully  in  the  highway  or  the  ad- 
joining lands.  And  we  have  yet  to  learn  any  sound  principle 
upon  which  they  can  fairly  be  required  to  guard  against  injuries 
to  persons  or  animals  wrongfully  upon  their  track,  by  making 
permanent  erections  to  preclude  such  persons  or  animals  from 
coming  there.  It  is  true,  unquestionably,  that  railway  compa- 
nies, in  common  with  all  others,  are  bound  to  avoid  doing  an  in- 
jury to  any  one,  if  it  can  be  avoided  at  the  time,  whether  such 
person  or  his  property  be  rightfully  or  wrongfully  in  their  way  ; 
but  that  this  duty  extends  to  previous  precautions  against  doing 
injuries  to  persons  wrongfully  upon  their  track,  either  personally 
or  by  their  property,  is  more  than  can  fairly  be  maintained,  as  it 
seems  to  us,  unless  railways  are  to  be  outlawed  in  this  respect. 
Every  one  in  the  exercise  of  a  lawful  business  has  the  right  to 
expect,  and  to  conduct  his  business  upon  the  expectation  that 
others  will  also  perform  their  duty,  and  if  they  do  not,  that  they 
will  be  required  by  the  administrators  of  the  law  to  take  the 
natural  consequences  of  such  neglect,  provided  that  even  when 
in  fault,  in  exposing  themselves  or  their  property  to  damage  and 
loss,  from  the  lawful  pursuit  of  lawful  business  by  others,  they 
be  not  wantonly  damaged  by  such  others,  but  only  from  neces- 
sity. And  this  is  all  which  we  understand  to  have  been  decided 
by  the  case  of  Isbell  v.  New  York  and  New  Haven  Railway  Com- 
pany.7 And  in  the  later  case  in  Massachusetts,9  Chapman,  J., 
seems  to  assume  the  same  ground,  and  it  is  the  only  one  in  our 
judgment  fairly  maintainable. 

8.  A  railroad  company  which  is  not  bound  to  fence  its  track 

9  Rogers  v.  Newburyport  Railw.  Company,  1  Allen,  16. 


504  FENCES.  §  128. 

is  not  liable  for  injuries  inflicted  by  its  engines  and  trains  upon 
cattle  straying  upon  the  track  of  the  road,  unless  such  injury  was 
caused  by  the  wanton  and  reckless  negligence  of  the  company 
through  its  agents  and  servants.10 

9.  It  was  held  in  Ohio,11  that  where  a  land-owner  granted  to 
the  company  the  right  of  way  of  a  given  width,  and  covenanted 
to  maintain  the  fences  on  both  sides,  and  subsequently  conveyed 
the  land,  it  was  held  that  the  grantee  of  the  land  was  so  far  af- 
fected by  his  grantor's  covenant  to  maintain  the  fences  on  the 
line  of  the  railway  that  he  could  not  visit  any  consequences 
upon  the  company  resulting  from  it  not  being  performed,  but 
must  bear  them  himself. 

10.  Where  the  owner  of  cattle  was  not  in 'the  habit  of  suffer- 
ing his  cattle  to  go  at  large  on  the  railway  track,  and  was  not  in 
a  position  to  take  any  steps  to  avert  the  danger  they  might  be  in 
from  the  passing  trains  of  the  company,  the  presence  of  the  cat- 
tle upon  the  track  will  be  regarded  as  accidental,  and  at  most 
they  will  be  deemed  but  as  trespassers,  and  be  presumed  to  have 
escaped  through  the  insufficiency  of  fences,  and  liable  for  any 
damage  they  might  cause.  But  if  the  servants  of  the  company 
used  no  means  to  avoid  killing  the  cattle,  and  manifested  such 
indifference  to  consequences,  such  a  degree  of  rashness  and  wan- 
tonness as  evinced  a  total  disregard  for  the  safety  of  the  cattle, 
and  a  willingness  to  destroy  them,  although  the  destruction  may 
not  have  been  intentional,  injustice  and  upon  principle  the  com- 
pany should  be  held  responsible  for  the  damages,  unless  it  appear 
that  the  owner  was  equally  in  fault.12  The  simple  killing  of  an 
animal  by  a  railway  company's  train  is  prima  facie  evidence  of 
negligence  on  the  part  of  their  engineer.12 

11.  In  one  case13  it  was  held  that  the  negligence  on  the  part  of 

10  Lou.  &  Frankfort  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177. 

11  Easter  v.  Little  Miami  R.  Co.,  14  Ohio  St.  48.  See  also  McCool  v.  Ga- 
lena &  Chicago  Union  R.  Co.,  17  Iowa  R.  461. 

12  Indianapolis,  &c.  R.  Co.  v.  Meek,  10  Ind.  R.  502. 

13  C.  H.  &  N.  W.  R.  Co.  v.  Goss,  1 7  Wise.  R.  428.  All  questions  of  negli- 
gence, where  there  is  any  uncertainty  in  the  facts,  must  be  submitted  to  the  jury 
under  proper  instructions.  Congor  v.  Galena,  &c.  U.  R.  Co.,  Id.  477.  We 
have  discussed  this  question  in  Briggs  v.  Taylor,  28  Vt.  R.  180,  184.  Post, 
§176,  pi.  2. 


§  128.  AGAINST   WHAT   CATTLE   BOUND   TO   FENCE.  505 

the  owner  of  cattle,  which  shall  preclude  his  recovery  for  an  in- 
jury to  them  by  a  railway  train,  must  depend  more  upon  its  de- 
gree than  upon  the  time  when  it  occurs  ;  and  a  distinction  in 
this  respect  should  be  made,  between  one  who  suffers  his  cattle 
knowingly  to  go  at  large  where  they  will  naturally  be  exposed  to 
passing  trains  upon  a  railway,  and  cases  where  the  cattle  get  at 
large  without  the  owners'  knowledge,  through  defect  of  fences  or 
their  being  temporarily  thrown  down. 


506 


LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §  129. 


*CHAPTER    XX 


LIABILITIES  IN  REGARD  TO  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS. 


SECTION    I. 


Liability  for  Acts  and  Omissions  of  Contractors  and  their  Agents. 


1.  Company  not  ordinarily  liable  for  the  act 

of  the  contractor  or  his  servant. 

2.  But  if  the  contractor  is  employed  to  do  the 

very  act,  company  is  liable. 

3.  American  courts  seem  disposed  to  adopt 

the  same  rule. 

4.  Distinction  attempted  between  liability  for 

acts  done  upon  movable  and  immovable 
property,  not  maintainable. 


5.  Cases  referred  to  where  true  grounds  of 

distinction  are  stated. 

6.  No  proper  ground  of  distinction  in  regard 

to  mode  of  employment. 

7.  Proper  basis   of  company's  liability   ex- 

plained. 

8.  So  long  as  one  retains  control  of  work  he 

is  responsible  for  the  conduct  of  it. 


§  129.  1.  The  general  doctrine  seems  now  firmly  established, 
that  the  company  is  not  liable  for  the  act  of  the  contractor's  ser- 
vant, where  the»contractor  has  an  independent  control,  although 
subordinate,  in  some  sense,  to  the  general  design  of  the  work. 
The  distinction,  although  but  imperfectly  defined  for  a  long  time, 
has  finally  assumed  definite  form,  that  one  is  liable  for  the  act 
of  his  servant,  but  not  for  that  of  a  contractor,  or  of  the  servant 
of  a  contractor.1 

1  Laugher  v.  Pointer,  5  B.  &  C.  547,  where  the  subject  is  ably  discussed,  but 
not  decided,  the  court  being  equally  divided.  Quarman  v.  Burnett,  6  M.  &  W. 
499  ;  Milligan  v.  Wedge,  12  Ad.  &  Ellis,  737  ;  Knight  v.  Fox,  5  Exch.  721  ; 
Overton  v.  Freeman,  8  Eng.  L.  &  Eq.  479  ;  Peachey  v.  Rowland,  16  Eng. 
L.  &  Eq.  442 ;  Rapson  v.  Cubitt,  9  M.  &  W.  710;  Reedie  v.  London  and  N. 
W.  Railw.,  6  Railw.  C.  184 ;  Hobbitt  v.  Same,  6  Railw.  C.  188 ;  Steel  v.  South- 
eastern Railw.,  32  Eng.  L.  &  Eq.  366  (1855).  In  this  last  case,  the  action 
against  the  company  was  for  flowing  plaintiffs  land,  by  the  defective  manner  in 
which  certain  mason  work  was  done,  by  the  workmen  of  one  Furness,  who  did 
the  work  as  a  contractor  under  the  company,  but  under  the  superintendence  of 
one  Phillips,  the  surveyor  of  the  company,  who  furnished  the  plans.  It  appeared 
that  the  injury  resulted  from  the  workmen  not  following  the  directions  of  Phil- 
lips. The  court  held  the  action  could  not  be  maintained.  Cresswell,  J.,  said : 
"  If  it  could  have  been  shown  that  the  plaintifl's  land  was  flooded  in  consequence 
*  377 


§  129.  CONTRACTORS  AND  THEIR  AGENTS.  507 

*  2.  But  if  the  contractor  or  his  servants  do  an  act  which  turns 
out  to  be  illegal,  or  a  violation  of  the  rights  of  others,  and  it  be 
the  very  act  which  he  was  employed  to  do,  the  employer  is  liable 
to  an  action.2  Lord  Campbell,  Ch.  J.,  here  said,  "  The  position 
in  effect  contended  for  by  defendants'  counsel,  I  think  wholly 
untenable,  namely,  that  where  there  is  a  contractor,  the  employer 
can  in  no  case  be  made  liable.  It  seems  to  me,  that  if  the  con- 
tractor do  that  which  he  is  ordered  to  do,  it  is  the  act  of  the  em- 
ployer, and  this  appears  to  have  been  "so  considered  in  the  cases" 
[upon  the  subject].  "  In  these  cases  nothing  was  ordered,  except 
that  which  the  party  giving  the  order  had  a  right  to  order,  and 
the  contract  was  to  do  that  which  was  legal,  and  the  employer 
was  held  properly  not  liable  for  what  the  contractor  did  negli- 
gently, the  relation  of  master  and  servant  not  existing.  But 
here  the  defendants  employ  a  contractor  to  do  that  which  was 
unlawful.  Upon  the  principle  contended  for,  a  man  might  pro- 
tect himself  in  the  case  of  a  menial  servant,  by  entering  into  a 
contract." 

3.  The  American  cases  have  not  as  yet,  perhaps,  assumed  that 
definite  and  uniform  line  of  decision  which  seems  to  obtain  in 
the  English  courts  upon  the  subject.  But  there  is  a  marked  dis- 
position, manifested  of  late,  to  adopt  substantially  the  same  view.3 
But  some  of  the  earlier  cases  in  this  country  and  in  England, 
hold  the  employer  responsible  for  all  the  acts  and  omissions  of  a 
contractor,  the  same  as  for  those  of  a  servant.4 

of  something  done  by  the  orders  of  Phillips,  the  company's  surveyor,  it  might 
have  been  said  that  was  the  same  as  if  Phillips  had  done  it  with  his  own  hands, 
and  then  the  company  would  have  been  responsible.  This  work  was  done  un- 
der a  contract,  and  there  is  nothing  to  show  negligence  in  any  one  for  whose 
acts  the  company  are  responsible."  This  seems  to  be  placing  the  matter  upon 
its  true  basis.  See  also  Young  v.  New  York  Central  Railw.,  30  Barb.  229. 
But  if  a  servant  of  the  contractor,  while  employed  on  the  work,  receive  an  in- 
jury from  a  passing  train  of  the  company  through  the  fault  of  their  servants,  and 
without  his  own  fault,  he  may  maintain  an  action  against  the  company.  lb. 
See  also  City  of  Cincinnati  v.  Stone,  5  Ohio  St.  38. 

2  Ellis  v.  The  Sheffield  Gas  Consumers'  Co.,  22  Eng.  Law  &  Eq.  198. 

8  Kelly  v.  Mayor  of  New  York,  1  Kernan,  432;  Blake  v.  Ferris,  1  Selden, 
48 ;  Pack  v.  The*  May  or  of  New  York,  4  Selden,  222  ;  Hutchinson  v.  York 
and  Newcastle  Railw.  6  Railw.  C.  580,  589. 

4  Bush  v.  Steinman,  1  B.  &  P.  404 ;  Lowell  v.  Boston  and  Lowell  Railw.  23 
Pick.  24.     See  also,  upon  this  point,  Mayor  of  New  York  v.  Bailey,  2  Denio, 

*S78 


508  LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §129. 

4.  At  one  time  a  distinction  was  attempted  to  be  maintained, 
between  the  liability  of  the  owner  of  fixed  and  permanent  prop- 
erty *  and  the  owner  of  movable  chattels,  for  work  done  in  regard 
to  them,  or  with  them,  making  the  employer  liable  in  the  former 
and  not  in  the  latter  case.5  But  the  distinction  was  found  to 
rest  upon  no  satisfactory  basis,  and  was  subsequently  aban- 
doned.6 

5.  The  grounds  of  all  the  decisions  upon  this  subject  are  fully 
and  satisfactorily  explained,  in  the  late  cases  of  Ellis  v.  Gas  Con- 
sumers' Company,2  and  Steel  v.  Southeastern  Railway.1 

6.  Sometimes  a  distinction  has  been,  attempted  to  be  drawn, 
in  regard  to  the  employer,  whether  the  employment  were  by  the 
job  or  by  the  day,,  making  him  liable  for  the  acts  of  the  opera- 
tives in  the  latter  and  not  in  the  former  case.  But  this  is  obvi- 
ously no  satisfactory  ground  upon  which  to  determine  the  ques- 
tion, although  it  might,  in  point  of  fact,  come  very  nearly  to 

433  ;  Elder  v.  Bemis,  2  Met.  599  ;  Earle  v.  Hall,  Id.  353.  In  the  latter  case  the 
subject  is  very  ably  discussed,  and  the  early  cases  somewhat  qualified.  And  in 
the  case  of  Hilliard  v.  Eichardson,  3  Gray,  349,  there  is  a  very  elaborate  and 
satisfactory  opinion,  by  Mr.  Justice  Thomas,  in  which  the  cases  are  very  exten- 
sively reviewed,  and  the  old  rule  of  Bush  v.  Steinraan  distinctly  repudiated. 

6  Rich  v.  Basterfield,  4  C.  B.  783  ;  The  King  v.  Pedley,  1  Ad.  &  Ellis,  822. 
And  see  Fish  v.  Dodge,  4  Denio,  311.  Littledale,  J.,  in  Laugher  v.  Pointer,  5  B. 
&  C,  547.  Parke,  B.,  in  Quarman  v.  Burnett,  6  M.  &  W.  510  ;  Randleson  v. 
Murray,  8  Ad.  &  Ellis,  109. 

6  Allen  v.  Hayward,  7  Q.  B.  960 ;  Reedie  v.  London  and  N.  W.  Railw.,  4 
Exch.  244.  But  it  is  still  maintained,  by  some,  that  if  the  owner  or  occupier  of 
real  estate  employ  workmen  under  a  contract  which  presupposes  the  underlet- 
ting of  the  work,  or  the  employment  of  subordinates,  and  in  the  course  of  the 
accomplishment  of  the  work  anything  is  done,  by  digging  or  suffering  rubbish  to 
accumulate,  which  amounts  to  a  public  nuisance,  whereby  any  person  suffers 
special  damage,  the  owner  or  occupier  of  the  premises  is  liable.  Bush  v.  Stein- 
man,  1  B.  &  P.  404  ;  Randleson  v.  Murray,  8  Ad.  &  Ellis,  109.  But  this  rule 
is  questioned.  Fish  v.  Dodge,  4  Denio,  311.  And  after  all  it  seems,  like  the 
other  phases  of  the  same  question,  to  resolve  itself  into  an  inquiry,  how  far  the 
first  employer  may  fairly  be  said  to  have  done,  or  caused  to  be  done,  the  wrong- 
ful act.  Burgess  v.  Gray,  1  C.  B.  578.  If  the  nuisance  occurred  naturally,  in 
the  ordinary  course  of  doing  the  work,  the  occupier  is  liable  ;  but  if  it  is  some 
irregularity  of  the  contractor,  or  his  servants,  he  alone  is  responsible.  £>ee 
Carman  v.  Stubenville  and  Ind.  Railw.,  4  Ohio  St.  399  ;  Thompson  v.  New 
Orleans  &  Carrollton  Railw.,  1  Louis.  Ann.  178  ;  s.  c.  4  Id.  262  ;  s.  c.  10  Id. 
403. 

*379 


§  129.  CONTRACTORS  AND  THEIR  AGENTS.  509 

effecting  the  same,  or  a  similar  separation  of  the  instances  in 
which  the  employer  is  or  is  not  liable. 

7.  The  true  ground  of  the  distinction  being,  after  all,  not  the 
form  of  the  employment,  or  the  rule  of  compensation,  but  whether 
the  work  was  done  under  the  immediate  control  and  direction  of 
the  employer,  so  that  the  operatives  were  his  servants,  and  not 
the  servants  of  another,  who  was  himself  the  undertaker  for  ac- 
complishing the  work,  and  having  a  separate,  and  independent, 
and  irresponsible  control  of  the  operatives,  bringing  the  question 
again  to  the  same  point,  the  difference  between  a  contractor  and 
a  servant.7 

8.  In  a  recent  case  before  the  Privy  Council,  where  the  owner 
of  land  employed  Indian  laborers  in  the  Mauritius,  at  so  much 
per  acre,  to  clear  it,  which  they  did,  partly  by  lighting  a  fire  so 
negligently  that  sparks  were  carried  by  the  wind  upon  the  land 
of  another,  and  there  burned  down  his  house,  it  was  held,  upon 
the  ground  that  the  owner  of  the  land  retained  control  of  the 
work,  and  made  constant  interference  in  the  conduct  of  it,  that 
lie  was  responsible  for  the  negligence  of  the  workmen,  as  the  re- 
lation of  master  and  servant,  or  superior  and  subordinate,  con- 
tinued.8 

7  In  the  case  of  Blackwell  v.  Wiswall,  24  Barb.  355,  is  an  elaborate  opinion 
by  Harris,  J.,  which  was  affirmed  by  the  full  court,  which  holds  that  the  only 
ground  upon  which  one  man  can  be  made  responsible  for  the  wrongful  acts  of 
another  is,  that  he  should  have  controlled  the  conduct  of  such  person.  And  that 
the  person  who  is  made  liable  for  the  acts  of  another  must  stand  in  the  relation 
of  superior. 

Hence  one  who  had  obtained  the  exclusive  right  of  a  ferry,  and  who  suffered 
another  to  operate  it  for  his  own  benefit,  as  lessee,  is  not  responsible  for  any  in- 
jury inflicted  upon  passengers,  through  the  negligence  or  unskilfulness  of  the 
servants  of  the  .lessee,  who  conduct  the  ferry,  and  it  would  make  no  difference 
if  the  lessee  had  been  himself  conducting  the  ferry,  at  the  time  the  injury 
accrued. 

And  if  it  were  true  that  the  grantee  of  the  ferry  was  guilty  of  a  breach  of 
duty,  in  making  the  lease,  it  will  not  entitle  any  one  to  sue  on  that  account,  un- 
less he  has  sustained  injury  resulting  from  the  act  of  leasing  directly,  and  not 
incidentally  merely. 

8  Serendat  v.  Saisse,  12  Jur.  N.  S.  301.  The  case  was  governed  by  the  rule 
laid  down  in  the  Code  Napoleon,  but  that  is  not  essentially  different  from  the 
rule  of  the  English  law  upon  the  subject. 


510 


LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §  130. 


*SECTION    II. 

Liability  of  the  Company  for  the  Acts  of  their  Agents  ana 

Servants. 


1.  Courts  manifest   disposition  to  give  such 

agents  a  liberal  discretion. 

2.  Company   liable  for  torts   committed  by 

agents  in  discharge  of  their  duties. 

3.  May  be  liable  for  wilful  act  of  servant  in 

the  range  of  his  employment. 

4.  Some  of  the  cases  hold  it  necessary  to  show 

the  assent  of  the  company. 
n.  6.    Cases  upon  this  subject  reviewed. 

5.  Most  of  the  cases  adhere  to  the  principle 

of  respondeat  superior.  m 

6.  But  it  seems  not  to  have  been  considered 

that  the  company  is  present. 

7.  The  cases  seem  to  regard  the  company  as 

always  absent. 

8.  In  cases  where  the  company  owe  a  special 

duty,  the  act  of  the  servant  is  always 
that  of  the  company. 


9.  It  seems  more  just  and  reasonable  to  re- 
gard the  company  as  always  present  in 
the  person  of  their  agent. 

1 0.  What  shall  amount  to  ratification  of  the 

act  of  an  agent  by  a  corporation  diffi- 
cult to  define. 

1 1.  How  corporations  may  be  held  responsible 

for  the  publication  of  a  libel. 
The  powers  of  a  corporation  are  such  only 

as  are  conferred  by  charter. 
False  certificate  of  capital  being  paid  in 

money. 

14.  Gas  company  not  bound  to  supply  gas  to 

all  who  require  it. 

1 5.  Company  may  become  responsible  for  false 

imprisonment. 


12 


13 


§  130.  1.  The  extent  of  the  liability  of  railways  for  the  acts  of 
their  servants  and  agents,  both  negative  and  positive,  seems  not 
very  fully  settled  in  many  of  its  incidents.  But  the  disposition 
of  the  courts  has  been  to  give  such  agents  and  servants  a  large 
and  liberal  discretion,  and  hold  the  companies  liable  for  all  their 
acts,  within  the  most  extensive  range  of  their  charter  powers.1 

1  Derby  v.  Phil.  &  Read.  Railw.,  14  Howard,  468,  483  ;  Noyes  v.  Rutland 
&  Burlington  Railw.,  27  Vt.  R.  110.  We  may  suppose  the  officers  and  ser- 
vants of  railways  to  take  exorbitant  fare  and  freight,  to  refuse  to  permit  passen- 
gers to  have  tickets  at  the  fixed  rate,  or  to  destroy  the  life  of  animals,  or  of  per- 
sons, by  recklessness,  or  wantonness,  in  the  discharge  of  their  appropriate  duties, 
and  it  would  be  strange  if  the  company  were  liable  in  the  former  case,  on  account 
of  their  special  duty  as  common  carriers,  and  not  in  the  latter,  because  they  owed 
no  duty  to  the  public  in  that  respect.  Alabama  &  Tenn.  Rivers  Railw.  v.  Kidd, 
29  Alabama  R.  221.  But  it  has  been  held  to  make  no  difference,  in  regard  to 
the  liability  of  the  company  for  the  act  of  their  servant,  while  acting  in  the  due 
course  of  his  employment,  that  he  did  not  follow  their  instructions,  either  general 
or  special.  Derby  v.  Phil.  &  Read.  Railw.,  14  How.  (U.  S.)  468,  483.  See  also 
Southwick  v.  Estes,  7  Cush.  385. 
*380 


§  130.      LIABILITIES   IN  REGARD   TO   AGENTS   AND   SERVANTS.  511 

2.  This  seems  the  only  construction  which  will  be  safe  or 
just,  or  indeed  practicable.  It  has  long  been  settled,  that  cor- 
porations are  liable  for  torts  committed  by  their  agents,  in  the 
discharge  of  the  business  of  their  employment,  and  within  the 
proper  range  of  such  employment.2 

*  3.  But  it  has  been  claimed  sometimes,  that  a  corporation  is 
not  liable  for  the  wilful  wrong  of  its  agents  or  servants.3  This 
opinion  seems  to  rest  upon  those  cases  which  have  maintained 
that  the  master,  whether  a  natural  pernso  or  a  corporation,  is 
never  liable  for  the  wilful  act  of  his  servant.4  Without  stopping 
here  to  discuss  the  soundness  of  the  general  principle,  as  appli- 
cable to  the  relation  of  master  and  servant,  it  must  be  conceded, 
we  think,  that  it  is  not  applicable  to  the  case  of  corporations, 
and  especially  such  as  railways.  In  regard  to  such  corpora- 
tions, it  seems  to  us  altogether  an  inadmissible  proposition,  to 
excuse  them  for  every  act  of  their  servants  and  agents  which  is 
done,  or  claimed  to  have  been  done,  positively  and  wilfully,  and 
which  results  in  an  injury  to  some  other  party,  or  proves  to  be 
illegal,  unless  directed  or  ratified  by  the  corporation.  Some  of 
the  cases  seem  to  disregard  any  such  ground  of  exemption  for 
the  corporation.5 

4.  But  in  some  cases  it  has  been  held,  that  the  corporation 
is  not  liable  for  the  wilful  act  of  its  agents,  unless  done  with  the 
assent  of  the  corporation,  seeming  to  imply  that  if  the  servant 
pursue  his  own  whim  or  caprice,  and  act  upon  his  own  im- 
pulses, the  act  is  his,  and  not  that  of  the  corporation.6 

2  Yarborough  v.  The  Bank  of  England,  16  East,  6;  Queen  v.  Birmingham, 
&  Gloucester  Railw.,  3  Ad.  &  Ell.  (N.  S.)  223  ;  Hay  v.  Cahoes  Co.,  3  Barb.  42  ; 
2  Aiken's  Vt.  R.  255,  429  ;  Bloodgood  v.  M.  &  H.  Railw.  18  Wend.  9  ;  Dater  v. 
Troy  T.  &  Railw.,  2  Hill,  629  ;  Chestnut  Hill  Turnpike  Co.  v.  Rutter,  4  S.  &  R. 
16.  They  are  bound  by  estoppels  in  pais.  Hale  v.  Union  Mutual  Fire  Ins.  Co., 
32  New  H.  R.  295. 

3  Foster  v.  The  Essex  Bank,  17  Mass.  R.  479,  510 ;  State  v.  Morris  &  Essex 
Railw.,  3  Zab.  360,  367. 

*  M'Manus  v.  Crickett,  1  East,  106;  Croft  v.  Allison,  4  B.  &  Aid.  590; 
Wright  v.  Wilcox,  19  Wend.  343. 

5  Edwards  v.  The  Union  Bank  of  Florida,  1  Florida  R.  136 ;  Whiteman  v. 
Wilmington  &  Sus.  Railw.,  2  Harr.  514. 

6  Phil.  Germantown  &  N.  Railway  v.  Wilt,  4  Whart.  143;  Fox  v.  The 
Northern  Liberties,  3  W.  &  S.  R.  103.     It  has  always  seemed  to  us,  that  the 

*381 


512  LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §130. 

*  5.  Most  of  the  cases,  upon  the  subject  of  the  liability  of  rail- 
ways, for  the  acts  of  their  officers,  agents  and  servants,  have  at- 

whole  class  of  cases,  which  hold  that  the  master  is  not  liable  for  the  wilful  acts 
of  his  servant,  has  grown  up  under  a  misconception  of  the  case  of  M'Manus  v. 
Crickett,  1  East,  106,  for  they  all  profess  to  base  themselves  upon  that  case. 

That  case  we  apprehend  was  never  intended  to  decide  more  than  that  the 
master  is  not  liable,  in  trespass,  for  the  wilful  act  of  the  servant.  Lord  Kenyon, 
Ch.  J.,  in  delivering  his  opinion  in  that  case,  with  which  the  court  concur,  ex- 
pressly says,  speaking  of  actions  on  the  case,  brought  against  the  master,  where 
the  servant  negligently  did  a  wrong,  in  the  course  of  his  employment  for  the 
master :  — 

"  The  form  of  these  actions  shows,  that  where  the  servant  is,  in  point  of  law, 
a  trespasser,  the  master  is  not  liable,  as  such,  though  liable  to  make  compensation 
for  the  damage  consequential  from  his  employing  of  an  unskilful  or  negligent 
servant." '    "  The  act  of  the  master  is  the  employment  of  the  servant." 

This  reasoning  certainly  applies  with  the  same  force  to  that  class  of  cases 
where  the  act  of  the  servant  is  both  direct  and  wilful,  as  where  it  is  only  negli- 
gent. The  master  is  not  liable  in  either  case,  perhaps,  so  much  for  having  im- 
pliedly authorized  the  act,  as  for  having  employed  an  unfaithful  servant,  who  did 
the  injury,  in  the  course  of  his  employment.  And  whether  done  negligently  or 
wilfully,  seems  to  be  of  no  possible  moment,  as  to  the  liability  of  the  master,  the 
only  inquiry  being  whether  it  was  done  in  the  course  of  the  servant's  employ- 
ment. And  the  argument,  that  when  the  servant  acts  wilfully,  he  ipso  facto 
leaves  the  employment  of  the  master,  and  if  he  is  driving  a  coach-and-six,  or  a 
locomotive  and  train  of  cars,  thereby  acquires  a  special  property  in  the  things, 
and  is,  pro  hac  vice,  the  owner,  and  doing  his  own  business,  may  sound  plausible 
enough,  perhaps,  but  we  confess  it  seems  to  us  unsound,  although  quoted  from 
so  ancient  a  date  as  Rolle's  Abridgment,  and  adopted  by  so  distinguished  a  judge 
as  Lord  Kenyon. 

The  truth  is  the  whole  argument  is  only  a  specious  fallacy  ;  and  whether  Lord 
Kenyon  intended  really  to  -eay,  that  rfc  action  will  lie  against  the  master  in  such 
case,  or  only  to  say,  what  the  case  required,  that  the  master  is  not  liable  in  tres- 
pass, it  is  very  obvious  the  proper  distinction,  in  regard  to  the  master's  liability, 
cannot  be  made  to  depend  upon  the  question  of  the  intention  of  the  servant. 
The  master  has  nothing  to  do,  either  way,  with  the  purpose  and  intention  of 
his  servants.  It  is  with  their  acts  that  he  is  to  be  affected,  and  if  these  come 
within  the  range  of  their  employment,  the  master  is  liable,  whether  the  act  be  a 
misfeasance,  or  a  nonfeasance,  an  omission  or  commission,  carelessly  or  purposely 
done. 

It  will  happen,  doubtless,  that  when  the  master  is  under  a  positive  duty  to  keep 
or  carry  things  safely,  as  a  bailee,  or  to  carry  persons  safely,  that  while  he  will 
be  liable  tor  the  mere  nonfeasance  of  the  servant,  the  servant  will  not  be  liable 
to  the  same  party  for  such  nonfeasance,  there  being  no  privity  between  the  ser- 
vant and  such  party,  no  duty  owing  to  such  person  from  the  servant.  But  in 
such  case  the  servant  will  be  liable  for  his  positive  wrongs,  and  wilful  acts  of  in- 
*382 


§  13t).      LIABILITIES   IN   REGARD   TO   AGENTS   AND   SERVANTS.  513 

*  tempted  to  carry  out  the  analogy  of  principal  and  agent,  or 

jury,  and  the  master  is  also  liable  for  these  latter  acts,  but  not  in  trespass,  as  the 
servant  is  ordinarily,  but  in  case. 

And  so,  where  the  servant  goes  out  of  his  employment,  and  does  a  wrong,  as 
committing  an  assault  by  his  own  hands  upon  a  stranger,  or  stealing  goods,  or 
any  other  act  wholly  disconnected  with  his  employment,  the  master  is  not  liable. 
This  is  the  view  taken  of  this  subject  by  Judge  Reeve.  Dom.  Rel.  358,  359,  360, 
and  it  is,  we  think,  the  only  consistent  and  rational  one,  and  the  one  which  must 
ultimately  prevail. 

It  is  virtually  adopted,  in  regard  to  corporations,  in  England.  Queen  v.  Great 
North  of  England  Railway,  9  Q.  B.  315  (1846).  Lord  Denman,  Ch.  J.,  said  : 
"  It  is  as  easy  to  charge  one  person,  or  a  body  corporate,  with  erecting  a  bar 
across  a  public  road,  as  with  the  non-repair  of  it,  and  they  may  as  well  be  com- 
pelled to  pay  a  fine  for  the  act  as  the  omission.  State  v.  Vermont  Central 
Railw.,  27  Vt.  R.  103  ;  Maund  v.  The  Monmouthshire  Canal  Co.,  4  M.  &  G. 
452,  where  it  is  held,  that  trespass  will  lie  against  a  corporation  for  the  act  of  its 
servant. 

This  is  familiar  law  in  the  American  courts.  And  it  is  not  deemed  of  any 
importance  that  the  agent  should  act  by  any  particular  form  of  appointment ; 
and  it  would  be  strange  if  the  liability  of  the  corporation  could  be  made  to  de- 
pend upon  the  intention  of  the  agent. 

This  distinction  is  not  claimed  to  be  of  any  importance  where  the  comj^any 
owe  a  duty,  as  carriers  of  freight  or  passengers,  for  there  the  corporation  are  lia- 
ble for  all  the  acts  of  their  servants;  but  for  the  acts  of  their  servants  in  regard 
to  strangers,  it  has  been  claimed  there  is  no  liability  where  the  servant  acts 
wilfully,  unless  the  corporation  direct  or  affirm  the  act  of  the  servant. 

And  to  this  we  may  assent,  in  a  qualified  sense.  The  corporation  does  virtu- 
ally assent  to  all  the  acts  of  its  agents  and  servants,  done  in  the  regular  course 
of  their  employment.  A  railway  or  any  business  corporation  exists  and  acts  only 
by  its  agents  and  servants,  and  by  putting  them  into  their  places,  or  suffering 
them  to  occupy  them,  the  company  consent  to  be  bound  by  their  acts.  Thus,  a 
conductor  or  engineer  of  a  railway,  while  he  acts  with  the  instruments  which  the 
company  put  into  his  hands  to  be  used  on  their  behalf,  upon  the  line  of  their  road, 
is  acting  instead  of  the  corporation,  and  his  acts  will  bind  the  corporation, 
whether  done  negligently  or  cautiously,  heedlessly  or  purposely. 

It  would  present  a  remarkable  anomaly  upon  this  subject,  to  hold  the  company 
liable  for  cattle  killed  carelessly  upon  their  track,  but  not  liable  when  it  was 
done  purposely  by  the  engineer,  or  other  servants  of  the  company.  It  is  proba- 
bly true,  that  if  the  engineer  should  kill  cattle,  in  any  way  wholly  disconnected 
with  his  employment,  either  upon  the  land  of  the  company,  or  others,  the  com- 
pany could  not  be  made  liable  ;  but  if  the  engineer  should  destroy  them  wilfully, 
by  rushing  the  engine  upon  them,  the  company  would  be  liable  undoubtedly,  if 
any  one  were,  of  which  there  can  be  little  question.  So  the  company  might  not 
be  liable  if  the  engineer  should  drive  the  engine  upon  another  road  and  there 
do  damage,  when  his  employment  extended  to  no  such  transaction. 

VOL.  I.  33  *383 


514  LIABILITY    FOR   ACTS    OF    AGENTS    AND   SUB-AGENTS.        J 130. 

master  *  and  servant,  as  between  natural  persons,  and  to  apply 
strictly  the  principle  of  respondeat  superior.1 

The  case  of  The  Southeastern  Railw.  v.  The  European  &  Am.  Telegraph  Co., 
24  Eng.  L.  &  Eq.  513  (1854),  seems  to  have  adopted,  in  principle,  the  view 
for  which  we  contend.  The  act  here  complained  of  was,  boring  under  the  rail- 
way, and  it  was  held  the  company  had  no  right  to  do  so,  and  that  they  were 
liable,  in  trespass,  for  this  unauthorized  act  of  their  servants.  See  also  Sinclair 
v.  Pearson,  7  New  H.  R.,  219,  227,  opinion  of  Parker,  Ch.  J.;  Phil.  &  Reading 
Railw.  v.  Derby,  14  How.  468,  483,  Grier,  J.  ;  Case  of  The  Druid,  1  Wm. 
Rob.  391,  opinion  of  Dr.  Lushinglon,  reviewing  the  cases. 

And  we  do  not  very  well  see  why  the  railway  is  not  liable  to  the  very  same 
action  which  the  servant  would  be,  because  his  act  is  the  act  of  the  corporation, 
within  the  range  of  his  employment,  as  running  over  sheep  upon  the  track,  in 
Sharrod  v.  London  &  N.  W.  Railw.,  4  Eng.  L.  &  Eq.  401,  where  it  is  held 
the  action  must  be  case.  The  distinction  between  this  case  and  that  of  The 
Southeastern  Railw.  v.  The  European  &  Am.  Telegraph  Co.  is  not  very  obvious, 
unless  we  suppose  in  the  latter  case  a  vote  of  the  corpoi'ation,  which  is  highly 
improbable.  See  Phil.  Railw.  Co.  v.  Wilt,  4  Whart.  143,  where  it  is  said  the 
action  should  be  case,  and  that  trespass  will  not  lie  unless  the  act  is  done  by  the 
command  or  with  the  assent  of  the  corporation,  which  never  occurs.  Corpora- 
tions do  not  vote  such  acts.  A  vote  of  a  corporation  that  their  engineers  should 
run  their  engines  over  cattle  would  be  an  anomaly. 

In  Sleath  v.  Wilson,  9  C.  &  P.  607,  where  a  servant  had  been  driving  his  mas- 
ter's carriage,  and  being  directed  to  return  to  the  stable,  or  while  that  was  his 
duty,  in  the  ordinary  course  of  his  employment,  he  went  out  of  his  way  with  the 
carriage,  to  do  some  errand  of  his  own,  and  drove  against  a  person  negligently  ; 
it  was  held  that  the  master  was  liable,  this  being  the  act  of  the  servant,  in  the 
course  of  his  employment,  because  the  injury  was  done  with  the  master's  horses 
and  carriage,  which  he  put  into  the  servant's  hands. 

But  here  the  servant  was  far  more  obviously  going  aside  of  his  employment, 
than  in  the  supposed  cases  of  his  assuming  to  do  a  wilful  wrong  in  the  direct 
course  of  his  ordinary  employment. 

This  case  certainly  cannot  stand  with  the  argument  of  the  court,  1  East,  106, 
And  yet  is  confirmed  by  other  cases.  Joel  v.  Morrison,  6  C.  &  P.  501.  Any 
different  view  of  this  subject  will,  it  seems  to  us,  in  principle,  bring  us  back  to 
the  earlier  theory  of  the  relation  of  corporations  to  their  servants  ;  that  corpora- 
tions are  not  liable  for  torts,  committed  by  their  servants„they  having  no  au- 
thority to  bind  the  corporation  by  unlawful  acts. 

T  Sherman  v.  Rochester,  &c.  Railw.,  15  Barbour,  574,  577  ;  Vanderbilt  v. 
Richmond  T.  Co.,  2  Comst.  479.  In  this  last  case,  it  was  held  the  company 
were  not  liable  for  the  trespass  committed  by  its  servants,  although  directed  so 
to  do  by  the  president  and  general  agent  of  the  company,  he  having  no  authority 
to  command  an  unlawful  act.  The  same  rule  is  laid  down  in  Lloyd  v.  Mayor  of 
New  York,  1  Selden,  369 ;  Ross  v.  Madison,  1  Carter  (Ind.),  281. 
*384 


§  130.      LIABILITIES   IN   REGARD   TO   AGENTS   AND   SERVANTS.  515 

6.  But  they  seem  to  have  lost  sight  of,  or  not  sufficiently  to 
have  considered,  one  peculiarity  of  this  mode  of  transportation 
of  freight  and  passengers,  that  the  superior  is  virtually  always 
present,  in  the  person  of  any  of  the  employees,  within  the  range 
of  the  employment,  as  much  so  as  is  practicable  in  such  cases. 
And  this  consideration,  in  regard  to  natural  persons,  is  held 
sufficient,  *  to  make  the  superior  always  liable  for  the  act  of  the 
subordinate,  whether  done  negligently  or  wilfully.8 

There  is  an  elaborate  case  in  20  Maine  R.  41,  State  v.  Great  Works  Mill 
&  Manu.  Co.  taking  precisely  the  old  view  of  the  liability  of  corporations  for  the 
acts  of  their  servants,  where  the  act  proves  unlawful.  But  most  of  the  later  cases 
hold  the  company  liable  for  the  torts  of  their  agents,  done  in  the  course  of  the 
agency. 

But  the  company  are  not  liable  for  injuries  to  persons  or  property  through  the 
recklessness  and  want  of  common  care  and  prudence  of  such  persons,  or  prop- 
erty, as  where  a  slave  lay  down  to  sleep  upon  the  track  of  a  railway,  and  was 
run  over  by  a  train  of  cars,  it  not  being  possible  to  discover  such  slave  above 
twenty  feet,  on  account  of  the  grass  upon  the  track.  Felder  v.  Railw.  Co.,  2 
McMullan,  403. 

See  also  Mitchell  v.  Crassweller,  16  Eng.  L.  &  Eq.  448;  Leame  v.  Bray,  3 
East,  593;  Claflin  v.  Wilcox,  18  Vt.  R.  605,  where  the  principles  involved  in 
this  inquiry  are  examined.     Smith  v.  Birmingham  Gas  Co.,  1  Ad.  &  Ell.  526. 

In  two  cases  in  Vol.  24  Conn"  R.  Crocker  v.  New  London,  W.  &  P.  Railw.,  249, 
and  Thames  Steamboat  Co.  v.  -Housatonic  Railw.,  40,  the  general  proposition  is 
maintained,  that  railway  companies  are  not  liable  for  acts  done  without  the 
command  of  the  agent,  having  the  superior  control  in  that  department  of  the 
company's  business,  at  the  time,  and  out  of  the  range  of  the  particular  employ- 
ment of  the  servant  doing  the  act.  This  seems  to  us  a  sound  and  just  proposi- 
tion. See  also  Giles  v.  Taflf  Vale  Railw.,  2  Ell.  &  Bl.  822  ;  Glover  v.  London 
&  North  W.  Railw.,  5  Exch.  66. 

It  is  said,  in  Illinois  Central  Railw.  v.  Downey,  18  111.  R.  259,  that  case  cannot 
be  maintained  against  a  corporation  for  injuries  wilfully  and  intentionally  com- 
mitted by  its  servants,  and  not  occasioned  in  the  course  of  their  employment  in 
the  pursuit  of  their  regular  business.  The  judge,  in  laying  down  the  proposition, 
seems  to  found  himself  upon  the  form  of  the  action.  But  if  any  action  will  lie 
against  a  corporation  for  the  wilful  misconduct  of  its  agents,  we  do  not  see  why 
it  may  not  be  the  same  ordinarily  brought  against  natural  persons  for  similar 
injuries.  But  the  proposition  laid  down  in  the  case  is  not  entirely  clear  or  per- 
spicuous. The  act  of  a  servant  may  be  in  the  direct  course  of  his  employment 
and  business,  and  still  be  wilful,  and  that  was  the  very  case  before  the  court,  if 
the  act  was  done  wilfully. 

8  Morse  v.  The  Auburn  &  Sy.  Railw.  Co.,  10  Barb  621 ;  Vandegrift  v.  Railw., 

2  N.  J.  R.  185,  188.     See  also  Burton  v.  Philadelphia,  &c.  Railw.,  4  Harring. 

(Del.)  252. 

*385 


516  LIABILITY  FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §  130. 

7.  And  although  the  cases  seem  to  treat  the  superior  as 
always  absent,  in  the  case  of  injuries  done  by  railways,  it  is 
submitted,  that  the  more  just  and  reasonable  rule  is,  to  regard 
the  principal  as  always  present,  when  the  servant  acts  within 
the  range  of  his  employment.9 

8.  This  distinction  is  of  no  importance  in  regard  to  the  liabil- 
ity of  railways,  as  carriers  of  freight  and  passengers,  for  then 
the  law  makes  the  company  liable  absolutely  in  one  case  and  in 
the  other,  as  far  as  care  and  diligence  can  effect  security.  Those 
cases,  therefore,  which  have  excused  corporations  as  bailees  of 
goods  for  hire,  when  they  were  purloined  by  their  servants,  it 
would  seem  are  necessarily  wrong.10 

9.  But,  as  railways  are,  like  other  corporations,  mere  entities 
of  the  law,  inappreciable  to  sense,  we  do  not  see  why  this  ab- 
straction should  not  be  regarded  as  always  existing  and  present 
in  the  discharge  of  its  functions.  It  is  indeed  a  mere  fiction, 
whether  we  regard  the  company  as  present  or  absent.  And  it 
seems  more  just  and  reasonable,  that  the  fiction  should  not  be 
resorted  to,  to  excuse  just  responsibility.  It  is  certain  we  never 
require  proof  of  any  organic  action  of  the  corporation,  to  con- 
stitute railways  carriers  of  freight  and  passengers.  All  that  is 
required  is  the  fact  of  their  assuming  such  offices,  to  create  the 
liability.  So,  too,  for  the  most  part,  in  regard  to  injuries  to 
strangers  and  mere  torts,  it  is  not  expected  that  any  proof  will 
be  given  of  any  express  authority  to  the  servant  or  employee  to 
do  the  particular  act.11 

9  Chandler  v.  Broughton,  1  Crompton  &  M.  29.  In  this  case  it  is  held,  that 
if  the  master  is  present,  although  passive,  he  is  liable  for  the  wilful  act  of  his 
servant.     M'Laughlin  v.  Pryor,  1  Car.  &  M.  354. 

10  Foster  v.  The  Essex  Bank,  17  Mass.  479,  510.  Trespass  will  lie  against  a 
railway  company.     Crawfordsville  Railw.  v.  Wright,  5  Ind.  R.  252. 

11  Lowell  v.  Boston  &  Lowell  Railw.,  23  Pick.  24.  Numerous  cases  upon  the 
subject  of  the  liability  of  railways  show  this  practically.  Where  the  company 
begins  to  run  trains  before  condemning  the  land  to  their  use,  it  is  seldom  that 
the  act  of  running  them  is  traceable  directly  to  the  corporation,  except  as  the 
act  of  the  employees.  This  is  always  done  by  design,  and  never  any  doubt  was 
entertained  that  the  company  are  liable,  and  in  trespass,  to  the  land-owner, 
which  could  not  be  the  case  upon  the  strict  analogies  referred  to  in  note  (6), 
unless  the  corporation  were  regarded  as  present,  and  assenting  to  the  act.  Ha- 
zen  v.  Boston  &  Maine  Railw.,  2  Gray,  574;  Eward  v.  Lawrenceburg  &  Upper 
Mis.  Railw.,  7  Porter  (Ind.),  711 ;  Hall  v.  Pickering,  40  Maine  R.  548. 


§  180.      LIABILITIES  IN  REGARD   TO   AGENTS   AND   SERVANTS.  517 

10.  What  shall  amount  to  a  ratification  of  the  acts  of  its 
agent  by  the  stockholders  of  the  corporation,  so  as  to  give  an 
authority  not  expressly  conferred,  or  one  not  intended  to  have 
been  conferred^  or  even  where  the  formal  act  of  the  corporation 
was  a  denial  of  the  authority,  has  been  a  good  deal  discussed, 
and  is  not,  perhaps,  susceptible  of  a  specific  definition.  The 
question  is  discussed  and  the  authorities  examined  in  Cumber- 
land Coal  Company  v.  Sherman.12 

11.  And  it  seems  to  be  settled,  both  in  this  country  and  in 
England,  that  a  -corporation  may  become  responsible  for  the 
publication  of  a  libel.  In  the  English  case,13  a  railway  company 
were  held  responsible  for  telegraphing  along  their  line,  that  the 
plaintiffs,  who  were  bankers,  had  stopped  payment.  Lord  Camp- 
bell said  :  The  allegation  of  malice  "  may  be  proved  by  showing 
that  the  publication  of  a  libel  took  place  by  order  of  the  defend- 
ants, and  was  therefore  wrongful,  although  the  defendants  held 
no  ill  will  to  the  plaintiffs,  and  did  not  mean  to  injure  them." 
And  the  leading  American  case14  decides  that  a  railway  may 
be  liable  for  a  libel  published  and  circulated  in  their  reports, 
wherein  they  represented  the  plaintiff  as  an  incompetent   me- 

The  rule  laid  down  upon  this  subject  by  Lord  Denman,  Ch.  J.,  in  a  case  which, 
although  a  trial  at  Nisi  Prius,  seems  to  have  been  examined  and  acquiesced  in 
by  all  the  judges  of  K.  B.,  Rex  v.  Medley,  6  C.  &  P.  292,  certainly  exhibits  the 
sagacity  and  wisdom  of  its  author. 

That  is  the  case  of  an  indictment  against  the  directors  of  a  gas  company  for 
the  act  of  the  company's  superintendent  and  engineer,  in  conveying  the  refuse 
gas  into  a  great  public  river,  whereby  the  fish  are  destroyed,  and  the  water 
rendered  unfit  for  use,  &c,  thereby  creating  a  public  nuisance.  No  distinction 
is  attempted,  or  could  fairly  be  made  here  between  the  liability  of  the  company 
and  that  of  the  directors. 

The  court  held  the  directors  liable  for  an  act  done  by  their  superintendent 
and  engineer,  under  a  general  authority  to  manage  the  works,  though  they  were 
personally  ignorant  of  the  particular  plan  adopted,  and  though  such  plan  was  a 
departure  from  the  original  and  understood  method,  which  the  directors  had  no 
reason  to  suppose  was  discontinued. 

The  learned  judge  uses  this  significant  language,  which  fully  justifies  all  we 
contend  for :  "  It  seems  to  me  both  common  sense  and  law,  that  if  persons,  for 
their  own  advantage,  employ  servants  to  conduct  works,  they  must  be  answer- 
able for  whatj  is  done  by  those  servants." 

12  30  Barb.  553. 

13  Whitefield  v.  Southeast.  Railw.  Co.;  Ellis  Blackb.  v.  Ellis,  115. 

14  Philadelphia,  Wil.  &  Bait.  Railw.  v.  Quigley,  21  How.  (U.  S.)  202. 


518  LIABILITY   FOR   ACTS    OF   AGENTS   AND   SUB-AGENTS.        §  130. 

clianic  and  builder  of  bridges,  station-houses,  and  other  struct- 
ures, and  wanting  in  all  requisite  capacity  and  skill  for  such 
employment.  The  court  held  that,  in  the  absence  of  express 
malice  or  bad  faith,  the  report  to  the  stockholders  is  a  privileged 
communication,  but  the  privilege  does  not  extend  to  the  pub- 
lication of  the  report  and  evidence  in  a  book  for  distribution 
among  the  persons  belonging  to  the  corporation  and  others,  and 
so  far  as  the  corporation  authorized  the  publication  in  the  form 
employed  they  are  responsible  in  damages. 

12.  It  is  well  settled,  that  corporations  have*  no  powers  except 
such  as  are  conferred  by  their  charters,  or  incidentally  requisite 
to  carry  into  effect  the  purposes  of  their  charters.  Hence  it  was 
held,  that  a  charter  to  build  a  road  to  the  top  of  a  mountain  and 
take  tolls  thereon,  does  not  warrant  the  company  in  purchasing 
horses  and  carriages  and  establishing  a  stage  route.  Nor  does 
an  additional  act  for  erecting  and  leasing  buildings  for  the  ac- 
commodation of  the  business  of  the  company  or  others  on  the 
road  have  that  effect.  And  an  agent  can  do  no  act  not  within 
the  corporate  powers,  nor  can  the  corporation  ratify  any  such 
act.15 

13.  Where  the  statute  requires  the  directors  of  a  corporation 
to  certify  the  fact  of  the  capital  stock  being  paid  into  the  treas- 
ury in  cash,  and  this  is  done,  when  in  fact  the  payment  was  made 
in  property  of  uncertain  value,  such  certificate  is  false,  and  the 
directors  responsible  for  the  debts  of  the  company  under  the 
statute,  imposing  that  penalty  for  making  a  false  certificate  in 
that  respect.16 

14.  A  gas  company,  chartered  for  the  purpose  of  lighting  the 
streets  and  buildings  of  a  town,  is  not  obliged  to  supply  gas  to 
all  persons  having  buildings  on  the  line  of  their  pipes,  upon 
being  tendered  reasonable  compensation.17 

15.  In  one  case  18  it  is  said  the  company  are  responsible  for 
a  false  imprisonment  committed  by  its  agents,  and  no  authority 
under  seal  is  requisite ;  but  there  must  be  evidence  justifying 
the  jury  in  finding  that  the  company's  servants  who  did  the  act 

16  Downing  v.  Mount  Washington  Road  Co.,  40  N.  H.  R.  230. 

16  Waters  v.  Quimby,  3  Dutcher,  198. 

17  Paterson  Gas  Light  Co.  v.  Brady,  3  Dutcher,  245. 

18  Goff  v.  Great  Northern  Railw.  Co.,  7  Jur.  N.  S.  286. 


§  130.      LIABILITIES   IN   REGARD   TO   AGENTS   AND   SERVANTS.  519 

had  authority  from  the  company  to  do  so.  In  this  case  the 
plaintiff  had  been  taken  into  custody  by  the  servants  of  the 
company,  and  by  direction  of  the  superintendent  of  the  line, 
carried  before  a  magistrate,  and  charged  with  an  attempt  to 
travel  in  one  of  the  company's  carriages  without  having  first 
paid  his  fare  and  procured  a  ticket.  The  fact  was,  he  had  paid 
his  fare  and  procured  a  ticket  and  mislaid  it  at  home,  and,  by 
mistake,  taken  another  ticket  accidentally  laid  in  the  same  place. 
He  explained  the  transaction  to  the  company's  servants,  and 
declined  to  pay  fare  again,  because  he  had  not  the  means,  but 
offered  to  pawn  some  of  the  tools  of  his  trade  which  he  had  with 
him.  The  court  held,  that,  as  some  one  must  have  authority  to 
act  for  the  company  in  such  emergencies,  the  superintendent  of 
the  line  must  be  regarded  as  having  that  authority.  The  jury 
gave  a  verdict  for  the  plaintiff  for  <£50  damages,  and  the  court 
declined  to  interfere  on  the  ground  that  they  were  excessive. 
The  wonder  is  that  any  one  should  have  had  any  hesitation  in 
regard  to  the  acts  of  the  agents  who  thus  acted  in  matters  rep- 
resenting the  company.  It  should  be  considered  in  all  cases, 
that  where  a  servant  of  any  corporation  does  any  act  coming 
fairly  within  the  scope  of  the  business  intrusted  to  him,  it 
must  be  held  binding  upon  the  company. 


520 


LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB- AGENTS.       §  131. 


♦SECTION    III. 


Injuries  to  Servants,  by  neglect  of  Fellow -Servants,  and  use 

of  Machinery. 


1 .  In  general  no  such  cause  of  action  exists 

against  company. 

2.  But  if  there  is  any  fault  in  employing 

unsuitable  servants,  or  machinery,  are 
liable. 

3.  But  not  liable  far  deficiency  of  help  or  for 

not  fencing  road. 

4.  Has  been  questioned  whether  rule  applies 

to  servants  of  different  grades. 

5.  Rule  not  adopted  in  some  states.     Case  of 

slaves.     Scotland. 


6.  No  implied  contract,  by  ship-owners,  that 

ship  is  seaworthy. 

7.  But  rule  does  not  apply  where  servant  has 

no  connection  with  the  particular  work. 
n.  9.    Cases  reviewed  in  England,  Scotland, 
and  America. 

8.  Recent  English  case  illustrating  the  Eng- 

lish doctrine. 

9.  Statement  of  the  law  in  Kentucky  and 

review  of  the  subject. 
10.  Subject  reviewed  by  Chief  Justice  Shaw. 


§  131.  1.  It  seems  to  be  now  perfectly  well  settled  in  Eng- 
land, and  mostly  in  this  country,  that  a  servant,  who  is  injured 
by  the  negligence  or  misconduct  of  his  fellow-servant,  can  main- 
tain no  action  against  the  master  for  such  injury.1 

*  2.  But  it  seems  to  be  conceded,  that  if  there  be  any  fault  in 
the  selection  of  the  other  servants,  or  in  continuing  them  in  their 
places,  after  they  have  proved  incompetent,  perhaps,  or  in  the 
employing  unsafe  machinery,  the  master  will  be  answerable  for 
all  injury  to  his  servants,  in  consequence.2 

1  Priestly  v.  Fowler,  3M.&W.1;  Hutchinson  v.  York,  Newcastle  &  Berwick 
Railw.,  5  Exch.  343  ;  Wigmore  v.  Jay,  5  Exch.  354;  Skip  v.  Eastern  Counties 
Railw.,  24  Eng.  L.  &  Eq.  396  (1853)  ;  Farwell  v.  Bos.  &  W.  RaiLw.,  4  Met.  49 ; 
Murray  v.  South  C.  Railw.,  1  McMullan,  385 ;  Brown  v.  Maxwell,  6  Hill  (N.  Y.), 
592 ;  Coon  v.  Sy.  &  Utica  Railw.,  6  Barb.  231  ;  s.  c.  1  Selden,  492  ;  Hayes  v. 
Western  Railw.,  3  Cush.  270  ;  Sherman  v.  Roch.  &  Sy.  Railw.,  15  Barb.  574; 
McMillan  v.  Railroad  Co.,  20  Barb.  449 ;  Honner  v.  The  Illinois  Central  Railw., 
15  111.  R.  550;  Ryan  v.  Cumberland  Valley  Railw.,  23  Penn.  St.  384  ;  King  v. 
Boston  &  Worcester  Railw.,  9  Cush.  112;  Madison  &  I.  Railw.  v.  Bacon,  6 
Porter  (Ind.),  205.  The  same  rule  prevails  in  Virginia.  Hawley  v.  Baltimore  & 
Ohio  Railw.,  6  Am.  Law  Reg.  352. 

-  Shaw,  Ch.  J.,  4  Met.  49,  57  ;   Keegan  v.  Western  Railw.,  4  Selden,  175. 

But  it  makes  no  difference  in  regard  to  the  liability  of  the  company  that  the 

person  came  into  the  service  voluntarily,  to  assist  the  servants  of  the  company 

in  a  particular  emergency,  and  was  killed  by  the  negligence  of  some  of  the  ser- 

*386,  387 


§131.  INJURIES   BY   FELLOW-SERVANTS.  521 

In  Frazier  v.  The  Pennsylvania  Railway  Company,3  it  was  held, 
that  if  the  company  knowingly  or  carelessly  employ  a  rash  or  in- 
competent conductor,  whereby  the  brakeman  on  the  train  is  in- 
jured, the  company  are  responsible  for  the  injury;  that  the  act 
of  the  agent  of  the  company  having  charge  of  employing  such 
agents  or  servants,  and  of  dismissing  them  for  incompetency,  is 

vants.  Degg  v.  Mid.  Railw.  Co.,  1  H.  &  N.  773.  It  is  said,  McMillan  v.  Sara- 
toga &  Wash.  R.  20  Barb.  449,  that  the  servant,  in  order  to  entitle  himself  to 
recover  for  injuries  from  defective  machinery,  must  prove  actual  notice  of  such 
defects  in  the  master.  But  culpable  negligence  is  sufficient,  undoubtedly,  and 
that  is  such  as,  under  the  circumstances,  a  prudent  man  would  not  be  guilty  of. 
Post,  note  10,  §  170.  But  if  the  servant  knew  of  the  defects,  and  did  not  in- 
form the  master,  or  if  the  defects  were  known  to  both  master  and  servant,  and 
the  servant  makes  no  objection  to  continue  the  service,  he  probably  could  not 
recover  of  the  master  for  any  damage  in  consequence.  But  if  the  master  know 
of  the  defect,  and  direct  the  servant  to  continue  the  service,  in  a  prescribed  man- 
ner, he  is  responsible  for  the  consequences.  Mellors  v.  Shaw,  7  Jur.  N.  S.  845. 
Where  the  defendants  were  joint  owners  and  workers  of  a  coal-mine,  and  one 
of  their  employees  was  injured  by  a  defect  in  the  machinery,  and  it  appeared 
that  one  of  the  defendants  personally  interfered  in  the  management  of  the 
colliery,  and  the  jury  found  that  defendant  guilty  of  personal  negligence,  it  was 
held  sufficient  to  implicate  both  defendants,  as  they  must  be  presumed  to  have 
known  that  improper  machinery  was  being  employed.  Ashworth  v.  Stanwix,  30 
L.  J.  Q.  B.  183.  But  see  Wright  v.  N.  Y.  Central  Railw.,  28  Barb.  80.  Post, 
n.  9. 

And  if  the  master  use  reasonable  precautions  and  efforts  to  procure  safe  and 
skilful  servants,  but,  without  fault,  happen  to  have  one  in  his  employ  through 
whose  incompetency  damage  occurs  to  a  fellow-servant,  the  master  is  not  liable. 
Tarrant  v.  Webb,  37  Eng.  L.  &  Eq.  281.  In  Dynen  v.  Leach,  26  Law  J.  N. 
S.,  Exch.  221  (April,  1857),  it  was  decided,  that  where  an  injury  happens  to  a 
servant  in  the  use  of  machinery,  in  the  course  of  his  employment,  of  the  nature 
of  which  he  is  as  much  aware  as  his  master,  and  the  use  of  which  is  the  proxi- 
mate cause  of  the  injury,  the  servant  cannot  recover,  nor,  if  death  ensues,  can 
his  personal  representative  recover  of  the  master,  there  being  no  evidence  of 
any  personal  negligence  on  his  part,  conducing  to  the  injury.  Nor  does  it  vary 
the  case  that  the  master  has  in  use  in  his  works  an  engine,  or  machine,  less  safe 
than  some  other  which  is  in  general  use,  or  that  there  was  another  and  safer 
mode  of  doing  the  business,  which  had  been  discarded  by  his  orders. 

And  in  Assop  v.  Yates,  30  Law  Times,  290  (in  January,  1858),  it  was  held, 
that  if  the  servant  knew  of  the  exposure,  and  consented  to  continue  the  service, 
and  suffered  damage,  he  could  not  recover  of  the  master  for  any  negligence 
which  might  have  contributed  to  the  result. 

3  38  Penn.  St.  104  ;  Wright  v.  N.  Y.  Central  Railw.  Co.,  28  Barb.  80 ;  Carle 
v.  B.  &  P.  Canal  &  R.  R.  Co.,  43  Me.  R.  269. 


522  LIABILITY   FOR  ACTS   OF   AGENTS  AND   SUB-AGENTS.       §131. 

the  act  of  the  company  ;  but  the  company  are  not  responsible  for 
such  injury,  unless  they  were  in  fault  in  employing  or  continu- 
ing the  conductor  in  their  service ;  that  the  character  of  such 
conductor  for  skill  and  faithfulness  may  be  shown  by  general 
reputation.  The  master  is  not  in  general  bound  to  use  any 
special  precautions  to  secure  the  servant  from  injury  in  regard 
to  matters  equally  within  the  knowledge  of  both.4  But  the 
master  is  liable  for  all  injuries  accruing  to  his  servants  from  his 
own  personal  negligence  ;  and  this  may  consist  in  personal  in- 
terference in  the  particular  matter  causing  the  injury,  or  by 
negligently  retaining  incompetent  servants,  producing  the  in- 
jury.5 But  a  railway  company  is  liable  in  damages  for  an  injury 
resulting  to  any  person  lawfully  using  its  road,  from  its  neglect 
to  introduce  any  improvement  in  its  machinery  or  apparatus, 
which  is  known  to  have  been  tested,  and  found  materially  to 
contribute  to  safety,  and  the  adoption  of  which  is  within  its 
power  so  as  to  be  reasonably  practicable.6  But  in  another  case,7 
in  an  action  by  a  servant  against  his  master  for  injuries  sus- 
tained by  the  explosion  of  a  steam-boiler  used  in  his  business, 
the  plaintiff  introduced  evidence  without  objection,  that  there 
was  no  such  fusible  safety-plug  on  the  boiler  as  was  required  by 
statute ;  and  the  presiding  judge  excluded  evidence  of  a  custom 
among  engineers  not  to  use  such  a  plug,  and  instructed  the  jury 
that  if  the  defendant  knowingly  used  the  boiler  without  the  plug, 
and  the  want  of  it  caused  the  accident,  the  plaintiff  was  entitled 
to  recover,  and  refused  to  instruct  them  that  if  the  defendant 
used  all  the  appliances  for  safety  that  were  ordinarily  used  in  such 
establishments,  he  was  not  liable,  although  he  did  not  use  the 
fusible  plug  required  by  statute,  and  it  was  held  the  defendant 
had  no  ground  of  exception.  It  is  here  declared  by  the  court 
that  ordinary  care  must  be  measured  by  the  character  and  risks 
and  exposures  of  the  business,  and  the  degree  of  care  required 
is  higher  when  life  or  limb  is  endangered,  or  a  large  amount 
of  property  is  involved,  than  in  other  cases.8 

4  Seymour  v.  Maddox,  16  Q.  B.  326. 

5  Ormond  v.  Holland,  1  El.  Bl.  &  El.  102. 

6  Smith  v.  N.  Y.  &  Harlem  Railw.  Co.,  19  N.  Y.  R.  127. 

7  Cayzer  v.  Taylor,  10  Gray,  274. 

8  Post,  common  carriers  of  passengers.     See  also  Briggs  v.  Taylor,  28  Vt.  R. 
80,  184. 


§  131.  INJURIES   BY   FELLOW-SERVANTS.  523 

3.  But  the  company  are  not  liable  because  there  was  a  defi- 
ciency of  help  at  that  point.9  And  a  neglect  in  the  company  to 
fence  their  road,  whereby  the  engine  was  thrown  from  the  track, 
by  coming  in  contact  with  cattle  thus  enabled  to  come  upon  the 
road,  and  a  servant  of  the  company  so  injured  that  he  died,  will 
not  render  them  liable.10 

4.  But  it  has  been  questioned  whether  the  rule  has  any  just 
application  to  servants  in  different  grades,  who  are  subordinated 
the  one  to  the  other.11  But  as  the  ground  upon  which  the  rule 
is  *  attempted  to  be  maintained  is  one  of  policy  chiefly,  that  it 
is  better  to  throw  the  hazard  upon  those  in  whose  power  it  is  to 
guard  against  it,  it  seems  very  questionable  how  far  any  such 
distinction  is  maintainable.  It  has  been  attempted  in  a  good 
many  cases,  but  does  not  seem  to  have  met  with  favor. 

5.  And  the  rule  itself  has  been  denied  in  some  cases,  in  this 
country,  after  very  elaborate  consideration.12     And  it  has  been 

9  Skip  v.  Eastern  Counties  Railw.,  24  Eng.  L.  &  Eq.  396 ;  Hayes  v.  Western 
Railw.,  3  Cush.  270. 

10  Langlois  v.  Buf.  &  Roch.  R.  19  Barb.  364. 

11  Gardiner,  J.,  in  Coon  v.  Sy.  &  Utica  Railroad  Co.,  1  Seld.  492  ;  s.  c.  6 
Barb.  231.  But  in  Gillshannon  v.  Stony  Brook  Railw.,  10  Cush.  228,  it  was 
held  to  make  no  difference  that  the  servants  were  not  in  a  common  employment. 
This  was  the  case  of  a  laborer  riding  upon  a  gravel  train  to  the  place  of  his  em- 
ployment, and  injured  by  the  negligence  of  those  in  charge  of  the  train. 

12  Little  Miami  Railw.  v.  Stevens,  20  Ohio  R.  415  ;  C.  C.  &  C.  Railroad  Co. 
v.  Keary,  3  Ohio  St.  202.  These  cases  are  placed  mainly  upon  the  ground  of 
the  person  injured  being  in  a  subordinate  position.  It  was  held  the  rule  did  not 
apply  to  day  laborers  upon  a  railway,  who  were  not  under  any  obligation  to 
renew  their  work  from  day  to  day,  where  one,  after  completing  his  day's  work, 
was  injured  through  the  negligence  of  the  conductor  of  one  of  the  company's 
trains,  upon  which  he  was  returning  home,  free  of  charge,  but  as  part  of  the 
contract  upon  which  he  worked.  Russell  v.  Hudson  River  R.,  5  Duer,  39.  And 
in  Whaalan  v.  M.  R.  &  Lake  Erie  Railw.,  8  Ohio  St.  249,  it  was  held  that  where 
one  of  the  employees  of  a  railway,  engaged  in  making  repairs  upon  its  track, 
was  injured  by  the  neglect  of  a  foreman  upon  one  of  the  trains,  there  was  no 
such  subordination  in  regard  to  their  duty  as  to  justify  any  departure  from  the 
general  rule  of  excusing  the  master.  See  also  Indianapolis  Railw.  v.  Love,  10 
Ind.  R.  554 ;  Same  v.  Klein,  11  Ind.  R.  38.  In  Hard,  Adm'r.  v.  Vt.  &  Canada 
Railw.,  32  Vt.  R.  473,  the  plaintiff's  intestate,  who  was  an  engineer  on  the 
defendant's  road,  was  killed  by  the  explosion  of  a  locomotive  engine  which  he 
was  running,  which  occurred  by  the  neglect  of  the  company's  master-mechanic 
in  not  keeping  the  machine  in  repair.    It  was  his  duty  to  superintend  and  direct 

*388 


524  LIABILITY   FOR   ACTS    OF   AGENTS   AND    SUB-AGENTS.        §  131. 

held  not  to  apply  to  the  case  of  slaves,13  especially  where  the  em- 
ployer stipulated  not  to  employ  them  about  the  engines  and  cars, 
unless  for  necessary  purposes  of  carrying  to  places  where  their 
services  were  needed,  and  they  were  carried  beyond  that  point, 
and  killed  in  jumping  from  the  cars.14  The  court  of  Sessions  in 
Scotland,  too,  seems  to  have  dissented  from  the  English  rule 
upon  this  subject.15 

the  repairs  upon  the  engines.  The  directors  of  the  company  were  not  guilty  of 
any  neglect  in  furnishing  the  road,  in  the  first  instance,  with  suitable  machinery 
and  competent  employees,  and  they  were  ignorant  of  any  defect  in  this  engine. 
The  company  were  held  not  responsible  for  the  death  of  plaintiff's  intestate,  on 
the  ground  that  under  the  circumstances  the  injury  must  be  considered  as  oc- 
curring from  the  neglect  of  a  fellow-servant,  employed  in  the  same  common 
business. 

13  Scudder  v.  "YVoodbridge,  1  Kelly,  195. 

14  Duncan  v.  Railroad  Co.,  2  Richardson,  613. 

15  Dixon  v.  Ranken,  1  Am.  Railw.  C.  569.  The  remarks  of  Lord  Cochburn 
are  pointed  and  pertinent.  "  The  English  decisions  certainly  seem  to  determine 
that  in  England,  where  a  person  is  injured  by  the  culpable  negligence  of  a  ser- 
vant, that  servant's  master  is  liable  in  reparation,  provided  the  injured  person 
was  one  of  the  public,  but  that  he  is  not  responsible  if  the  person  so  injured 
happened  to  be  a  fellow-workman  of  the  delincpient  servant.  It  is  said,  as  an 
illustration  of  this,  that  if  a  coachman  kills  a  stranger  by  improper  driving,  the 
employer  of  the  coachman  is  liable,  but  that  he  is  not  liable  if  the  coachman 
only  kills  the  footman.  If  this  be  the  law  of  England,  I  speak  of  it  with  all  due 
respect,  it  most  certainly  is  not  the  law  of  Scotland.  I  defy  any  industry  to 
produce  a  single  decision  or  dictum,  or  institutional  indication,  or  any  trace  of 
any  authority  to  this  effect,  or  of  this  tendency,  from  the  whole  range  of  our  law. 
If  any  such  idea  exists  in  our  system,  it  has,  as  yet,  lurked  undetected.  It  has 
never  been  directly  condemned,  because  it  has  never  been  stated." 

After  citing  numerous  cases  in  their  Reports,  where  the  question  was  involved 
but  not  raised,  his  lordship  continues  :  "  The  new  rule  seemed  to  be  recommended 
to  us,  not  only  on  account  of  the  respect  due  to  the  foreign  tribunal,  —  the  weight 
of  which  we  all  acknowledge,  —  but  also  on  account  of  its  own  inherent  justice. 
This  last  recommendation  fails  with  me,  because  I  think  that  the  justice  of  the 
thing  is  exactly  in  the  opposite  direction.  I  have  rarely  come  upon  any  prin- 
ciple that  seems  less  reconcilable  with  legal  reason.  I  can  conceive  some 
reasoning  for  exempting  the  employer  from  liability  altogether,  but  not  one  for 
exempting  him  only  when  those  who  act  for  him  injure  one  of  themselves.  It 
rather  seems  to  me  that  these  are  the  very  persons  who  have  the  strongest  claim 
upon  him  for  reparation,  because  they  incur  danger  on  his  account,  and  certainly 
are  not  understood  by  our  law  to  come  under  any  engagement  to  take  these  risks 
on  themselves." 

But  the  English  cases  certainly  do  regard  the  servant  as  impliedly  stipulating 


§  131.  INJURIES  BY   FELLOW-SERVANTS.  525 

*  6.  But  it  has  been  held,  that  there  is  no  implied  obligation 
on  the  part  of  a  ship-owner  towards  a  seaman,  who  agrees  to 

to  run  these  risks  when  he  enters  into  the  service.  The  remarks  of  the  learned 
judge  above  ought  not  perhaps  to  be  regarded  as  of  any  inherent  weight  here, 
beyond  the  mere  force  of  the  argument,  and  it  is  always  to  be  regretted  that 
any  difference  of  decision  should  exist  among  the  tribunals  of  the  different 
states  upon  a  subject  of  so  much  practical  moment.  The  great  preponderance 
of  authority  in  this  country  is  undoubtedly  in  favor  of  the  English  rule ;  but  we 
could  not  forbear  to  state,  that  we  have  always  had  similar  difficulties  to  those 
stated  by  his  lordship,  in  regard  to  the  justice  or  policy  of  the  rule.  When  these 
cases  go  by  appeal  to  the  House  of  Lords,  they  are  determined  according  to  the 
rule  of  die  Scottish  law.  Marshall  v.  Stewart,  33  Eng.  L.  &  Eq.  1.  Opinion 
of  Cranicorth,  Chancellor. 

But  see  the  very  lucid  and  convincing  argument  of  Shaw,  Ch.  J.,  in  Farwell  v. 
Boston  &  Wor.  Railw.,  4  Met.  49,  56  ;  s.  c.  1  Am.  R.  C.  339 ;  and  the  most  in- 
genious attempt  at  reductio  ad  absurdum  upon  the  subject  by  Lord  Abinger,  Ch. 
B.,  in  Priestly  v.  Fowler,  3  M.  &  W.  1,  6,  7,  where  the  learned  Ch.  B.,  among 
other  ingenious  speculations,  supposes  some  fearful  consequences  might  follow  if 
the  master  were  to  be  held  liable  for  the  negligence  of  the  chambermaid  in  put- 
ting the  servant  into  wet  sheets  ! 

If  a  man  should  receive  damage  in  any  way  by  his  own  foolhardiness,  even 
where  a  fellow-servant  was  concerned  in  producing  the  result,  he  could  not 
recover  of  any  one  upon  the  most  obvious  grounds.  Some  discretion  and  re- 
serve are  no  doubt  requisite  in  the  application  of  the  rule  of  the  servant's  right 
to  recover  for  the  default  of  his  fellow-servant,  but  whether  the  difficulty  of  its 
application  will  fairly  justify  its  abandonment,  would  seem  somewhat  question- 
able, if  the  thing  were  res  Integra,  which  it  certainly  is  not,  either  in  the  English 
or  American  law. 

In  a  recent  English  case,  in  the  Court  of  Exchequer,  January,  1856,  36  Eng. 
L.  &  Eq.  486,  Wiggett  v.  Fox  et  al.,  the  court  adhere  to  the  rule  laid  down  in 
former  English  cases  upon  this  subject,  reiterating  the  same  reasons,  with  the 
qualification,  that  if  there  were  any  reason  for  holding  that  the  persons  whose 
act  caused  the  injury  were  not  persons  of  ordinary  skill  and  care,  the  case 
would  be  different,  there  being  an  implied  obligation  upon  the  master  not  to 
employ  such  persons. 

With  this  qualification  there  seems  to  be  no  serious  objection  to  the  English 
rule  of  law  upon  this  subject.  Bassett  v.  Norwich  &  Nashua  Railw.,  Superior 
Court  of  Conn.  19  Law  Rep.  551. 

In  a  case  in  the  Court  of  Sessions  in  Scotland,  so  late  as  January,  1857,  the 
court  repelled  a  plea,  founded  on  the  claim  that  the  master  is  not  liable  to  a 
servant  for  the  negligence  of  a  fellow-servant.  The  Lord  Justice  Clerk 
took  occasion  to  remark,  that  the  master's  liability  rested  upon  the  broad  prin- 
ciple, that  an  employer  being  liable  to  third  parties  for  injuries  caused  by  his 
servants,  a  fortiori  he  is  liable  to  the  servant  for  injury  caused  by  another  ser- 
vant. 

*389 


526  LIABILITY    FOR   ACTS    OF    AGENTS   AND    SUB-AGENTS.        §  131. 

serve  *  on  board,  that  the  ship  is  seaworthy,  and  in  the  absence 
of  any  express  warranty  to  that  effect,  or  of  any  knowledge  of 
the  defect,  or  any  personal  blame  on  the  part  of  the  ship-owner, 
the  seaman  cannot  maintain  an  action,  by  reason  of  the  ship  be- 
coming leaky,  and  his  being  obliged  to  undergo  extra  labor.16 

7.  But  a  carpenter  employed  by  a  railway  company  to  build 
one  of  their  bridges,  and  who  took  passage  in  their  cars,  by  their 
directions,  to  go  to  a  certain  point  for  the  purpose  of  loading 
timber  to  be  used  in  building  the  bridge,  and  who  was  injured 

But  for  injury  to  servants  through  obvious  or  known  defects  of  machinery  in 
the  use  of  the  master,  the  cases  all  agree  that  he  is  liable.  McGatrick  v.  Wa- 
son,  4  Ohio  St.  566. 

In  the  Exchequer  Chamber,  so  late  as  May,  1857,  in  Roberts  v.  Smith,  29 
Law  Times,  169,  it  was  held,  that  where  the  master  directs  the  conduct  of  the 
servant,  he  is  liable  for  any  injury  resulting  therefrom  for  the  other  servants. 
See  also  Weyant  v.  N.  Y.  &  Harlem  R.  3  Duer,  360. 

It  has  been  held  in  some  cases,  Scudder  v.  Woodbridge,  1  Ga.  195,  that  the 
rule  that  the  master  is  not  liable  for  an  injury  to  one  servant,  inflicted  by  the 
want  of  care  or  skill  in  a  fellow-servant,  does  not  apply  to  the  case  of  slaves, 
on  account  of  their  want  of  freedom  in  action  and  choice  in  continuing  the  ser- 
vice when  it  becomes  perilous.  But  if  an  exception  could  be  founded  upon  any 
such  basis,  it  would  extend  to  all  the  subordinate  relations  of  service,  as  has  some- 
times been  attempted.  But  where  the  injury  resulted  from  the  habitual  negli- 
gence of  the  engineer  of  a  boat,  whereby  the  slaves  perished,  by  the  bursting  of  a 
boiler,  the  master  of  the  boat  is  liable,  and  the  same  rule  applies  to  the  case  of 
freemen.  Walker  v.  Boiling,  22  Alab.  R.  294  ;  Cook  v.  Parham,  24  Alab.  R.  21. 
The  court  here  were  equally  divided  upon  the  question,  whether  the  general 
rule  upon  this  subject  applied  to  the  case  of  a  slave  hired  on  a  steamboat. 

But  this  court  subsequently  held,  on  general  principles,  that  where  one  em- 
ploys a  mechanic  to  repair  a  building  which  is  in  a  ruinous  state,  but  this  is  not 
known  to  the  workmen  and  not  disclosed  to  the  contractor,  the  employer  is  lia- 
ble for  all  injury  sustained  by  the  contractor  or  his  subordinates,  being  slaves  in 
this  case,  by  reason  of  the  peril  to  which  they  are  thus  fraudulently  exposed,  but 
that  he  will  not  be  held  so  liable  if  he  inform  the  contractor  of  the  peril  to  which 
he  is  exposed.     Perry  v.  Marsh,  25  Alab.  R.  659. 

16  Couch  v.  Steel,  24  Eng.  L.  &  Eq.  7  7.  But  if  the  master  might  have  known 
the  exposure  of  the  servant,  but  for  his  own  want  of  ordinary  care,  as  in  the  use 
of  a  defective  locomotive  engine,  which  exploded  and  injured  the  servant, 
through  defective  construction,  the  master  is  liable  for  the  injury.  Noyes  v. 
Smith,  28  Vt.  R.  59.  But  where  the  danger  is  known  to  the  servant  and  not 
communicated  to  the  superior,  or  master,  he  cannot  recover  for  any  injury  he 
may  sustain  in  consequence.  McMillan  v.  Saratoga  &  Wash.  R.  20  Barb.  449  ; 
Hubgh  v.  N.  O.  &  C.  Railw.,  6  Louis.  An.  495. 
*390 


§  131.  INJURIES   BY  FELLOW-SERVANTS.  527 

in  the  course  of  the  passage  by  the  negligent  conduct  of  the 
train,  is  entitled  to  recover  of  the  company,  the  plaintiff  having 
no  particular  connection  with  the  conduct  of  the  business  in 
which  he  was  injured.17 

8.  The  English  courts  still  maintain  their  former  stand,  that 
all  the  servants  of  the  same  company  engaged  in  carrying  for- 
ward the  common  enterprise,  although  in  different  departments, 
widely  separated,  or  strictly  subordinated  to  others,  are  to  be  re- 
garded as  fellow-servants,  bound  by  the  terms  of  their  employ- 
ment to  run  the  hazard  of  any  negligence  or  wrong-doing 
which  may  be  committed  by  any  of  the  number,  so  far  as  it 
operates  to  their  detriment.  This  is  strikingly  illustrated  in  a 
recent  case  in  the  Common  Pleas,ls  where  it  was  held  that  one 
employed  to  pick  up  stones  from  off  the  defendant's  line,  and 
who,  while  returning  in  the  evening  after  his  work  was  over  in 
a  train  driven  by  the  defendant's  servants,  was  injured  by  a  col- 
lision, caused  by  the  negligence  of  those  who  had  charge  of  the 
train,  it  being  one  of  the  terms  of  the  contract  of  hiring  that  he 
should  return  in  the  defendant's  train,  could  not  recover  dam- 
ages of  the  company,  as  he  and  the  person  guilty  of  the  negligence 
resulting  in  the  injury  were  fellow-servants,  engaged  in  a  com- 
mon employment,  within  the  meaning  of  the  rtlle  of  law  applica- 
ble to  the  case. 

9.  This  whole  question  is  very  elaborately  reviewed  in  a  recent 
case  in  Kentucky,19  which  we  shall  here  repeat,  together  with 
our  own  comments  at  the  time  upon  the  several  propositions 
embraced  in  the  opinion,  at  the  risk  of  some  repetition,  perhaps. 

Where  an  employee  upon  a  railway  is  injured  by  the  negli- 
gence of  the  engineer  of  the  company,  and  is  himself  guilty  only 
of  such  neglect  and  want  of  care  as  would  not  have  exposed  him 

17  Gillenwater  v.  Mad.  &  Ind.  Railw.  5  Ind.  R.  340.  And  where  laborers 
upon  a  railway  were  transported  to  and  from  their  labor  and  meals  upon  the 
gravel  trains  of  the  company,  which  they  were  employed  in  loading  and  unload- 
ing, but  had  no  agency  in  managing,  and  in  such  transportation,  by  the  gross 
negligence  and  unskilfulness  of  the  engineer  were  injured,  it  was  held  the  com- 
pany were  liable.  Fitzpatrick  v.  New  Albany  and  Salem  Railw.,  7  Porter  (Ind.), 
436.  But  not  where  the  servant  is  in  fault  in  attempting  to  get  upon  the  train 
when  in  motion.     Timmons  v.  The  Central  Ohio  Railw.,  6  Ohio  St.  105. 

18  Tunney  v.  Midland  Railw.  Co.,  12  Jur.  N.  S.  691. 

18  Louisville  &  Nashville  Railw.  v.  Collins,  5  Am.  Law  Reg.  N.  S.  265. 


528  LIABILITY   FOR   ACTS   OF   AGENTS  AND   SUB-AGENTS.       §  131. 

to  the  injury  but  for  the  gross  neglect  of  the  engineer,  and  when 
the  engineer  might  with  ordinary  care  have  avoided  the  injury, 
he  is  not  precluded  from  maintining  his  action. 

What  is  gross  neglect  in  the  engineer  may  be  determined  by 
the  court,  as  a  question  of  law,  where  there  is  no  controversy  in 
regard  to  the  facts. 

In  regard  to  those  acts  of  a  corporation  which  require  care, 
diligence,  and  judgment,  and  which  it  performs  through  the 
instrumentality  of  general  superintending  agents,  the  corporation 
itself  is  to  be  regarded  as  always  present  supervising  the  action 
of  its  agents. 

The  rule  of  law,  that  the  master  is  not  responsible  to  one  of 
his  servants  for  an  injury  inflicted  through  the  neglect  of  a  fel- 
low-servant, is  not  adopted,  to  the  full  extent  of  the  English  de- 
cisions, in  the  state  of  Kentucky.  The  rule  is  there  regarded 
as  anomalous,  inconsistent  with  principle,  analogy,  and  public 
policy,  and  unsupported  by  any  good  or  consistent  reason. 
•  In  regard  to  all  servants  of  the  company  acting  in  a  subordi- 
nate sphere,  the  one  class  to  another,  and  receiving  injuries  while 
in  the  performance  of  duties,  under  the  command  of  a  superior, 
whose  authority  they  have  no  right  to  disobey  or  disregard,  it  is 
the  same  precisely  as  if  the  injury  were  inflicted  by  the  act  of 
the  company  ;  and  if  there  is  any  want  of  care  and  skill  in 
the  superior,  such  as  his  position  and  duty  reasonably  demand, 
the  company  are  responsible. 

In  such  cases  there  is  no  implied  undertaking  on  the  part  of 
the  servant  to  risk  the  consequences  of  the  misconduct  of  the 
agent  of  the  company  under  whose  authority  he  acted,  and 
through  whose  negligence  he  received  the  injury. 

Servants  so  situated,  in  distinct  grades  of  superiority  and  sub- 
ordination, are  not  to  be  considered  as  "  fellow-servants,"  or 
"  in  the  same  service  "  ;  but  rather  in  the  light  of  strangers  to 
each  other's  duties  and  responsibilities  ;  and  the  subordinate 
may  recover  of  the  company  for  any  injury  sustained  by  reason 
of  the  ordinary  neglect  of  the  superior. 

But  if  the  subordinate  is  himself  guilty  of  any  want  of  ordi- 
nary care,  whereby  he  is  more  exposed  to  the  injury,  he  cannot 
recover,  unless  the  superior  was  guilty  of  wilful  misconduct  or 


§  131.  INJURIES   BY    FELLOW-SERVANTS.  529 

gross  neglect,  but  for  which  he  might  have  avoided  inflicting  the 
injury,  notwithstanding  the  negligence  of  the  other  party. 

Where,  therefore,  an  engineer,  while  upon  his  engine,  ordered 
a  common  laborer  to  do  some  needed  work  under  the  engine,  in 
fastening  bolts  or  screws  belonging  to  it ;  and  such  workman, 
while  lying  upon  his  back  in  the  performance  of  the  service,  had 
both  his  legs  cut  off,  by  the  movement  of  the  engine  forward  and 
backward,  through  the  gross  neglect  or  wilful  misconduct  of 
such  engineer,  the  company  arc  responsible  for  the  injury,  not- 
withstanding there  might  have  been  some  want  of  ordinary  care 
on  the  part  of  the  subordinate,  contributing  to  some  extent  to 
the  injury,  but  not  necessitating  it,  except  through  the  gross 
misconduct  of  the  superior. 

Per  Robertson,  C.  J.  — We  do  not  consider  that  the  rule,  exempt- 
ing the  company  from  responsibility  for  injuries  inflicted  upon 
their  servants  through  the  want  of  ordinary  care  in  other  servants 
of  the  company,  extends  beyond  those  who  are  strictly  "  fellow- 
servants  "  in  the  same  grade  of  employment,  and  where  one  is 
not  subject  to  the  order  or  control  of  the  others. 

Beyond  this  the  company  is  responsible  for  the  consequences 
of  the  misconduct  of  superiors  towards  inferiors  in  its  service, 
the  same  as  towards  strangers.20 

40  We  have  presented  a  very  extended  syllabus  of  the  foregoing  ease,  em- 
bracing all  the  points  upon  which  the  opinion  of  the  court  is  given,  without 
regard  to  their  being  directly  and  necessarily  involved  in  the  decision  of  the 
cause. 

And  notwithstanding  the  avowed  willingness  of  the  learned  judge  to  disre- 
gard the  general  current  of  authority  upon  the  point,  and  the  apparent  spirit  of 
freedom  with  which  he  deals  with  the  decisions  in  other  states  and  countries,  — 
notwithstanding  all  this,  and  more  that  might  be  fairly  said  as  to  the  fearlessness 
and  disregard  of  self  with  which  the  opinion  abounds,  which  is  not  altogether 
common  in  dealing  with  the  opinions  of  such  men  as  Lord  Abinger  and  Chief 
Justice  Shaw,  and  a  host  of  others  scarcely  less  eminent  in  their  field  of  service; 
notwithstanding  all  this,  which  has  rather  surprised  us,  we  must  confess,  at  the 
same  time  that  we  could  not  but  regard  it  as  a  refreshing  exception  to  the  pro- 
verbial subserviency  of  opinion  to  precedent  and  analogy,  we  have  nevertheless 
felt  compelled  to  the  conclusion  that  the  opinion  is  altogether  and  entirely 
sound  in  its  principles,  and  maintained  with  very  uncommon  ability  in  its  logic 
as  well  as  its  illustrations,  both  of  which  seem  altogether  unexceptionable. 

But  we  must  warn  those  members  of  the  profession  who  are  not  altogether 
aware  of  the  extent  of  the  decisions  in  the  opposite  direction,  that  they  embrace 

VOL.  i.  34 


530  LIABILITY   FOR   ACTS    OF   AGENTS   AND   SUB-AGENTS.        §  131. 

10.  The  question  is  again  reviewed  by  the  same  learned  judge 
who  gave  the  widely  admired  opinion  in  Farwell  v.  Boston  & 

a  very  large  number  of  the  best-considered  English  cases,  and  an  equal  number, 
almost,  in  the  American  states,  including  all,  as  far  as  we  know,  with  the  ex- 
ception of  Ohio,  and  Georgia,  and  now  Kentucky.  And  the  decisions  in  these 
latter  states  are  all  attempted  to  be  placed  upon  peculiar  grounds,  thereby  vir- 
tually confessing  the  soundness  of  the  general  rule,  that  one  cannot  recover  of 
his  employer  for  an  injury  inflicted  through  the  want  of  care  in  a  fellow-servant, 
employed  in  the  same  department  of  the  master's  business,  and  under  the  same 
general  control.     This  is  declared  by  the  learned  judge  in  the  case  last  cited. 

The  opinion  in  the  case  would  have  been  far  more  satisfactory  if  the  learned 
judge  could  have  devoted  more  labor  and  time  to  the  matter.  If  a  careful  re- 
view of  the  preceding  cases,  with  the  reasoning  of  the  judges  could  have  been 
presented  in  the  very  carefully  prepared  opinion,  it  could  not  have  failed  to  be 
more  valuable.  Discussion  of  a  broad  principle  is  much  less  expensive  to  the 
author,  and  far  less  satisfactory,  as  a  general  thing,  to  the  profession,  than  a 
careful  review  of  the  cases. 

We  should  not  expect  our  readers  would  here  listen  to  such  an  attempt  on 
our  part,  since  it  must  occupy  considerable  space,  and  would  be  merely  profes- 
sional, instead  of  being  clothed  with  the  weight  of  judicial  authority. 

But  we  have  noticed  with  gratification,  more  for  the  justice  of  the  view  than 
because  we  had  before  contended  for  the  same,  that  the  learned  judge  declares 
most  unequivocally,  in  the  principal  case,  that  the  corporation  is  to  be  regarded 
as  constructively  present  in  all  acts  performed  by  its  general  agents  within  the 
6Cope  of  their  authority,  i.  e.  within  the  range  of  their  ordinary  employment. 
The  consequences  of  mistake  or  misapprehension,  upon  this  point,  have  led 
many  courts  into  conclusions  greatly  at  variance  with  the  common  instincts  of 
reason  and  humanity,  and  have  tended  to  interpose  an  unwarrantable  shield 
between  the  conduct  of  railway  employees  and  the  just  responsibility  of  the 
company.  We  trust  that  the  reasonableness  and  justice  of  this  construction 
will  at  no  distant  day  induce  its  universal  adoption.  See  ante,  §  130,  pi.  6,  7, 
8,  9,  and  notes,  and  cases  cited. 

In  regard  to  the  leading  point  involved  in  the  principal  case,  how  far  a  servant 
is  entitled  to  recover  of  the  master  for  an  injury  inflicted  by  the  negligence  or 
want  of  skill  of  a  fellow-servant,  the  doctrine  of  exemption  was  first  established 
in  the  Court  of  Exchequer,  in  Priestly  v.  Fowler,  3  M.  &  W.  1,  which  was  decided 
at  Michaelmas  Term,  1837.  The  same  rule  was  adopted  in  this  country  by  the 
Supreme  Judicial  Court  of  Massachusetts,  in  Farwell  v.  The  Boston  &  Worcester 
Railroad  Corporation,  4  Met.  49,  at  the  March  Term,  1842,  supported  by  one  of 
the  ablest  and  most  unexceptionable  opinions  ever  delivered  from  the  American 
Bench,  —  an  opinion  which  has  commanded  the  admiration  of  the  entire  profes- 
sion, both  Bench  and  Bar,  in  England  as  well  as  in  America;  and  which  has 
been  more  extensively  adopted  and  formally  incorporated  into  the  opinions  of 
the  English  courts  than  perhaps  any  other  opinion  of  an  American  judge.  This 
opinion  was  in  fact  preceded  by  that  of  Murray  v.  The  South  Carolina  Railw. 


§  131.  INJURIES   BY   FELLOW-SERVANTS.  531 

Maine  Railway,  in  a  later  case,21  and  the  following  propositions 
maintained.     A  carpenter  employed  by  the  day  by  a  railroad 

Co.,  1  McMullan,  385,  in  the  same  direction ;  but  the  former  has  been  regarded 
as  the  leading  American  case. 

These  leading  opinions,  in  the  different  countries,  have  been  followed  by  a 
multitude  of  cases  reaching  down  to  the  present  time,  most  of  them  occupied  in 
the  discussion  of  what  were  claimed  to  be  exceptional  cases.  In  England,  we 
may,  among  a  multitude  of  others,  refer  to  Hutchinson  v.  York,  Newcastle  & 
Berwick  Railw.,  5  Exch.  343  ;  Wigmore  v.  Jay,  Id.  354  ;  Skip  v.  Eastern  Coun- 
ties Railw.,  24  Eng.  L.  &  Eq.  396  ;  Degg  v.  Midland  Railw.,  1  Hurlst.  &  N.  773 ; 
Tarrant  v.  Webb,  37  Eng.  L.  &  Eq.  281 ;  Mellors  v.  Shaw,  7  Jur.  N.  S.  845; 
Seymour  v.  Maddox,  16,  Q.  B.  326;  Ormond  v.  Holland,  1  El.,  Bl.  &  Ellis,  102. 

In  the  American  states  the  decisions  are  considerably  numerous  where  the 
general  principle  of  the  foregoing  decisions  has  been  acted  upon,  or  recog- 
nized, but  we  shall  not  refer  to  more  than  will  be  requisite  to  show  how  far  the 
rule  prevails  in  different  states. 

It  is  adopted  in  Brown  v.  Maxwell,  6  Hill  (N.  Y.),  592;  Coon  v.  Syracuse 
&  Utica  Railw.,  6  Barb.  231  ;  s.  c.  1  Selden,  492,  and  numerous  other  New- 
York  cases  cited,  ante,  §  131.  See  also  Honner  v.  111.  Central  Railw.,  15  111. 
R.  550 ;  Ryan  v.  Cumberland  Valley  Railw.,  23  Penn.  St.  384 ;  Madison  & 
Indianapolis  Railw.  v.  Bacon,  6  Porter  (Ind.),  205;  Hawley  v.  Baltimore  & 
Ohio  Railw.,  6  Am.  Law  Reg.  352;  Frazier  v.  Pennsylvania  Railw.  Co.,  38 
Penn.  St.  104;  Wright  v.  New  York  Central  Railw.,  28  Barb.  80 ;  Carle  v. 
B.  &  P.  Canal  &  Railw.  Co.,  43  Maine  R.  269  ;  Noyes  v.  Smith,  28  Vt.  R.  59; 
Indianapolis  Railw.  v.  Love,  10  Indiana  R.  554;  Same  v.  Klein,  11  Id.  38. 
The  general  principle  is  adopted  in  all  the  other  states  where  the  question  has 
arisen ;  for  although  in  Ohio,  in  the  cases  of  Little  Miami  Railw.  Co.  v.  Stevens, 
20  Ohio  R.  415,  and  C.  C.  &  C.  Railw.  Co.  v.  Keary,  3  Ohio  St.  201,  the  com- 
panies are  held  responsible  for  the  injury,  the  decisions  are  placed  upon  the 
ground,  that  the  persons  injured  were  in  subordinate  positions.  And  in  Scudder 
v.  Wood  bridge,  1  Kelly,  195,  it  was  held  the  rule  did  not  excuse  the  master  for 
injury  thus  caused  to  slaves,  mainly  upon  the  same  ground  of  their  dependent 
and  subordinate  positions.  And  the  principal  case  is  placed  upon  the  same 
ground.  And  in  the  more  recent  case  of  Whaalan  v.  Mad  R.  &  Lake  Erie 
Railw.  Co.,  8  Ohio,  N.  S.  249,  it  was  held,  that  where  one  of  the  trackmen  was 
injured  by  neglect  of  the  fireman  upon  one  of  the  trains,  there  was  no  such 
subordination  of  position  as  to  take  the  case  out  of  the  general  rule,  and  the 
case  was  decided  in  favor  of  the  company ;  thus  maintaining  the  soundness  of 
the  general  rule  in  that  state  by  its  latest  decision. 

It  is  safe,  therefore,  to  state,  that  all  the  cases,  both  English  and  American, 
maintain  the  general  rule  to  the  extent  of  those  who  are  strictly  "  fellow-ser- 
vants "  in  the  same  department  of  service.  And  where  this  is  not  the  fact,  but 
the  employees  are  so  far  removed  from  each  other  that  the  one  is  bound  to  obey 

21  Seaver  v.  Boston  &  M.  Railw.  Co.,  14  Gray,  466. 


582  LIABILITY    FOR    ACTS    OF    AGENTS    AND    SUB-AGENTS.        §  131. 

corporation  to  work  on  the  line  of  their  road,  and  carried  on  the 
cars  to  the  place  of  such  work  without  paying  fare,  cannot  main- 
tain an  action  against  the  corporation  for  injuries  received  while 
being  so  carried,  by  the  negligence  of  the  engineer  employed  by 
them  for  that  service,  or  by  a  hidden  defect  in  the  axle,  the  failure 
to  discover  which,  if  discoverable,  was  occasioned  by  the  negli- 
gence of  servants  of  the  corporation,  whose  duty  it  was  to  examine 
and  keep  in  repair  the  cars,  engines,  and  axles.  In  such  a  case,  if 
the  company  exercised  reasonable  care  in  providing  and  using 
the  machinery,  in  the  use  of  which  the  plaintiff  was  so  injured, 
they  are  not  responsible  for  the  injury. 

the  directions  of  the  other,  so  that  the  superior  may  be  fairly  regarded  as  rep- 
resenting the  master,  we  think  it  more  consonant  with  reason  and  justice  to 
treat  the  matter  as  not  coming  within  the  principle  of  the  rule.  Tin's  is  so  de- 
clared by  Gardiner,  J.,  in  Coon  v.  Syracuse  &  Utica  Railroad  Co.,  1  Selden,  492. 
But  this  qualification  is  denied  by  Shaw,  C.  J.,  in  Farwell  v.  Boston  &  Worcester 
Railw.,  4  Met.  49,  60,  61,  unless  the  departments  of  service  are  so  far  independ- 
ent as  to  have  no  privity  with  each  other,  not  being  under  the  control  of  a  com- 
mon master.  And  it  was  so  decided  in  Gillshannon  v.  Stony  Brook  Railw.  Co., 
10  Cush.  '228.  And  it  seems  finally  to  be  settled  upon  authority,  that  it  is  suf- 
ficient to  bring  the  case  within  the  rule,  that  the  servants  are  employed  in  the 
same  common  service,  as  in  running  a  railway,  or  working  a  mine.  Wright  v. 
New  York  Central  Railw.,  25  N.  Y.  Ct.  App.  562,  564,  by  Allen,  J.  The  ques- 
tion is  whether  they  are  under  the  same  general  control.  Abraham  v.  Reynolds, 
5  H.  &  N.  142;  Hard,  Adm'r.  v.  Vermont  &  Canada  Railroad,  32  Vt.  R.  473. 
And  there  is  no  question  that  the  master  is  responsible  for  any  want  of  skill  or 
care  in  employing  competent  and  trustworthy  servants,  and  in  sufficient  num- 
bers ;  and  in  furnishing  safe  and  suitable  machinery  for  the  work  in  hand,  unless 
the  servants,  knowing,  or  having  the  means  of  knowing,  of  the  deficiency  in  fur- 
nishing proper  help  or  machinery,  consent  to  continue  in  the  employment.  And 
the  neglect  or  want  of  skill  of  the  master's  general  agent  employed  in  procuring 
help  and  machinery,  is  the  act  of  the  master ;  Hard  v.  Vermont  &  Canada  Railw. 
Co.,  supra;  Wiggett  v.  Fox,  36  Eng.  L.  &  Eq.  486  ;  Noyes  v.  Smith,  28  Vt.  R. 
59.  Indeed  this  exception  is  recognized  in  most  of  the  preceding  cases.  Many 
of  the  late  cases  upon  the  question  have  turned  upon  this  point,  the  general  rule 
having  been  regarded  as  settled  beyond  question  for  many  years.  We  are  not 
disposed  to  question  the  extent  of  the  exceptions  to  the  general  rule ;  and  pos- 
sibly any  greater  extension  in  that  direction  might  essentially  impair  the  general 
benefit  to  be  derived  from  it.  But  we  would  be  content  to  treat  all  the  subordi- 
nates who  were  under  the  control  of  a  superior  as  entitled  to  hold  such  superior 
as  representing  the  master,  and  the  master  as  responsible  for  his  incompetency 
or  misconduct.  We  should  regard  this  as  a  more  salutary  rule,  upon  the  whole, 
than  the  present  one,  but  the  general  current  of  authority  seems  greatly  in  the 
opposite  direction. 


§131a. 


INJURIES    BY    FELLOW-SERVANTS. 


533 


§  131  a.  The  following  points,  decided  by  a  court  of  ability, 
and  the  opinion  in  which  the  several  propositions  were  very  care- 
fully illustrated,  with  our  own  comments  upon  them,  as  pub- 
lished in  the  American  Law  Register,1  appear  to  us  proper  to  be 
repeated  here,  as  the  clearest  exposition  of  our  own  views  upon 
the  questions  involved  which  we  could  give. 


1.  Where  a  passenger  is  injured  on  a  rail- 

way the  prima  facie  presumption  is,  that 
it  resulted  from  the  want  of  due  care  on 
the  part  of  the  company. 

2.  But,  nevertheless,  it  is  competent  to  prove 

the  damage  occurred  without  their  fault. 


3.   One  who  rides  upon  a  free,  pass,  or  in  the 

baggage-car,  is  not  thereby  deprived  of 
his  remedy  against  the  company  for  in- 
juries received  through  their  want  of  due 
care,  provided  he  was  at  the  time  a  pas- 
senger and  without  fault  on  his  own  part. 


The  following  propositions  were  declared  by  the  Supreme 
Court  of  Missouri,  in  the  case  of  Hannibal  and  St.  Joseph  Rail- 
road Company  v.  Hattie  Higgins,  by  Eliza  Higgins,  her  guar- 
dian : 1  — 

1.  The  statute  of  Missouri  giving  a  remedy  to  the  representa- 
tives of  a  passenger  killed  upon  a  railway  train,  goes  upon  the 
same,  principle  which  before  obtained  in  regard  to  injuries  to 
passengers,  that  such  injury  or  death  primd  facie  results  from 
want  of  due  care  in  the  company. 

2.  The  presumption  is  not  conclusive  under  the  statute,  but 
may  be  rebutted  by  evidence  of  the  cause  of  the  injury.  One 
who  had  been  in  the  employment  of  the  company  as  an  engineer 
and  brakeman,  until  his  train  was  discontinued  a  few  days  pre- 
vious, and  who  had  not  been  settled  with  or  discharged,  although 
not  actually  under  pay  at  the  time,  and  who  signalled  the  train 
to  take  him  up,  and  who  took  his  seat  in  the  baggage-car  with 
the  other  employees  of  the  company,  and  paid  no  fare  and  was 
not  expected  to,  although  at  the  time  in  pursuit  of  other  employ- 
ment, cannot  be  considered  a  passenger.  If  he  would  secure 
the  immunities  and  rights  of  a  passenger,  he  should  have  paid 
his  fare  and  taken  a  seat  in  the  passenger-car. 

3.  It  will  not  deprive  of  his  remedy  a  passenger  who  comes 
upon  the  train  in  that  character,  and  is  so  received,  that  he  is 
allowed  as  matter  of  courtesy  to  pass  free,  or  to  ride  with  the 
employees  of  the  road  in  the  baggage-car.     But  a  passenger  who 

1  Vol.  V.N.  S.,  715-721. 


534        LIABILITY   FOE   ACTS    OF   AGENTS    AND    SUB-AGENTS.        §  131 0 

leaves  the  passenger  carriages  to  go  upon  the  platforms  or  into 
the  baggage-car,  unless  compelled  to  do  so  for  want  of  proper 
accommodations  in  the  passenger  carriages,  or  else  by  permission 
of  the  conductor  of  the  train,  must  be  regarded  as  depriving 
himself  of  the  ordinary  remedies  against  the  company  for  injuries 
received,  unless  upon  proof  that  his  change  of  position  did  not 
conduce  to  the  injury.2 

2  Holmes,  J.  —  The  plaintiff  below,  an  infant  and  only  child  of  Thomas  G. 
Higgins,  who  was  killed  while  riding  in  a  baggage-car  on  the  Hannibal  and  St. 
Joseph  Railroad,  on  the  16th  day  of  September,  1861,  brings  this  suit;  the  wid- 
ow having  failed  to  sue  within  six  months  to  recover  the  $5,000,  which  are 
given  by  the  second  section  of  the  act  concerning  damages  (Rev.  Stat.  1855, 
p.  64  7),  where  any  passenger  shall  die  from  an  injury  resulting  from  or  occa- 
sioned by  any  defect  or  insufficiency  in  any  railroad. 

The  petition  is  evidently  framed  upon  that  act,  though  the  statute  is  not 
named  or  referred  to  by  any  express  words.  It  contained  two  counts:  one 
founded  upon  the  second  section,  and  the  other  upon  the  third  section  of  the 
act. 

The  verdict  was  for  the  plaintiff  upon  the  first  count,  and  for  the  defendant 
upon  the  second  count;  and  the  damages  were  assessed  at  % 5,000.  The  de- 
fendant's motion  for  a  new  trial  was  overruled.  The  case  came  up  by  appeal, 
and  stands  here  upon  the  first  count  only. 

The  clause  of  the  act  on  which  this  first  count  is  founded  relates  exclusively 
to  passengers,  and  to  the  cases  of  injury  and  death  occasioned  by 'some  defect  or 
insufficiency  in  the  railroad.  This  statute  makes  the  mere  fact  of  an  injury  and 
death  resulting  from  a  cause  of  this  nature,  a  prima  facie  case  of  negligence 
and  liability  on  the  part  of  the  defendant,  as  a  presumption  of  law.  It  is  not  a 
conclusive  presumption,  but  disputable  by  proof  that  such  defect  or  insufficiency 
was  not  the  result  of  negligence,  nor  does  it  preclude '  any  other  defence  of  a 
different  nature.  The  act  is  to  be  interpreted  and  construed  with  reference  to 
the  state  of  the  law  as  it  stood  before  its  passage.  By  the  general  principles  of 
law,  which  were  applicable  to  common  carriers  of  passengers  and  to  persons 
standing  in  that  relation,  the  fact  of  an  injury  to  a  passenger,  occasioned  by  a 
defective  railroad  car  or  coach,  or  by  a  defect  in  any  part  of  the  machinery, 
makes  a  prima  facie  case  of  negligence  against  the  defendant  sufficient  to  shift 
the  burden  of  proof:  and  by  that  law  carriers  of  passengers  were  held  respon- 
sible for  the  utmost  degree  of  care  and  diligence,  and  were  liable  for  the  slight- 
est neglect.  This  act  is  evidently  based  upon  the  same  principles :  it  is  confined 
by  its  terms  strictly  to  passengers  and  to  injuries  arising  from  cases  of  that  pe- 
culiar nature  only ;  and  it  must  receive  a  construction  in  accordance  with  these 
principles.  Viewed  in  this  light,  it  is  clear  that  the  intent  of  this  clause  of  the 
act  was  to  provide  greater  security  for  the  lives  and  safety  of  the  passengers  as 
such,  and  to  enable  the  representatives  of  a  deceased  passenger  to  pursue  the 


§131  a.  INJURIES   BY   FELLOW-SERVANTS.  535 

remedy  given  by  the  act ;  and  no  other  class  of  persons  is  intended  within  ita 
purview. 

The  first  question  here  presented  is,  whether  the  deceased  person  was  a  pas- 
senger within  the  meaning  of  the  act.  The  evidence  shows  he  had  been  in  the 
employ  of  the  company  as  an  engineer  and  brakeman  for  several  years,  with 
some  intermission  ;  that  for  several  months  previous  to  the  accident,  and  down 
to  the  4th  day  of  September,  1861,  when  his  train  was  stopped  by  guerillas,  he 
had  been  continually  on  duty  as  a  brakeman ;  and  that,  about  that  time,  the  in- 
terruptions occasioned  by  actual  hostilities  in  that  neighborhood  had  caused  the 
train  on  which  he  was  employed  to  cease  running  for  a  time  ;  and  that  for  sev- 
eral days  before  the  day  of  his  death  he  had  not  been  in  actual  service  upon 
any  train,  but  his  name  still  remained  on  the  roll  of  the  company's  employees 
as  before.  He  had  never  been  paid  off  and  discharged ;  his  account  was  unset- 
tled ;  there  were  arrears  still  due  him  at  the  time  of  his  decease.  It  appears 
brakemen  were  paid  monthly,  but  at  the  rate  of  so  much  per  day  for  as  many 
days  as  they  actually  worked  during  the  month. 

These  facts  would  all  go  to  show  that  his  employment  still  continued,  and 
that  his  relations  to  the  company  was  still  that  of  an  employee.  On  the  morn- 
ing of  the  accident  he  signalled  the  train  to  stop,  and  take  him  up  where  he 
was ;  he  took  his  place  on  the  baggage-car  among  other  employees ;  he  appears 
to  have  treated  himself  as  an  employee,  and  was  treated  by  the  conductor  as  an 
employee  who  was  passing  from  one  point  to  another  on  the  road  in  the  usual 
manner.  He  engaged  no  passage,  took  no  seat  in  any  passenger-car,  paid  no 
fare,  and  evidently  did  not  expect  to  pay  any ;  and  none  was  exacted  from  him. 
He  did  not  claim  to  be  a  passenger,  nor  was  he  treated  otherwise  than  as  an 
employee  by  the  conductor.  Upon  a  careful  examination  of  the  evidence  on  this 
point,  we  think  it  tended  to  prove  that  he  was  an  employee,  and  not  a  passen- 
ger within  the  purview  of  this  act,  and  that  under  all  the  circumstances  the  con- 
ductor had  a  right  to  presume  he  was  travelling  as  an  employee  of  the  com- 
pany merely. 

Such  being  the  relation  of  the  parties,  the  mere  circumstances  that  he  had 
been  off  duty  as  a  brakeman  for  some  days,  or  that  he  was  then  passing  on  his 
own  private  errand,  and  not  immediately  engaged  on  the  business  of  the  com- 
pany or  in  running  that  very  train,  cannot  be  allowed  to  make  any  difference : 
Gilshannon  v.  Stony  Brook  Railw.  Co.,  10  Cush.  228.  The  conductor,  knowing 
nim  only  as  an  employee,  was  not  bound  to  inquire  into  his  particular  errand ; 
and  though  informed,  by  a  casual  conversation  with  him  in  the  baggage-car,  that 
he  was  looking  for  some  temporary  employment  so  as  not  to  lose  time,  he  still 
might  be  justified  as  treating  him  as  an  employee  who  had  the  privilege  of  free 
passage  on  the  train  as  such.  Under  such  circumstances  it  was  his  business,  if 
he  claimed  to  be  a  passenger,  to  engage  or  take  a  seat  in  the  passenger-coach, 
or  at  least  in  some  way  to  make  it  known  to  the  conductor  that  he  claimed  to 
be  travelling  in  the  character  of  a  passenger. 

Where  a  director  was  invited  by  the  president  to  pass  over  the  road  as  a  pas- 
senger, without  paying  fare ;  Philadelphia  and  Reading  Railroad  Co.  v.  Derby, 
14  How.  (U.  S.)  468  ;  where  a  man  was  taken  up  by  the  engineer  of  a  gravel- 


536         LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §131  a. 

train,  to  be  carried  as  a  passenger,  paying  fare  as  the  practice  had  been,  and 
was  allowed  to  go  from  the  tender  to  the  gravel-car :  Lawrenceburg  &  Upper 
Mississippi  Railroad  Co.  i\  Montgomery,  7  Ind.  R.  474  ;  and  where  a  man  who 
had  been  a  work-hand  on  the  road,  but  had  left  the  service  of  the  company  two 
weeks  before  the  accident,  because  they  did  not  pay  him,  got  upon  the  train  to 
be  carried  as  a  passenger:  Ohio  and  Mississippi  Railroad  Co.  v.  Muhlins,  30  111. 
R.  9 ;  and  where  a  house-carpenter  was  employed  to  build  a  bridge,  and  was 
sent  by  the  company  on  their  cars  to  another  place  to  assist  in  loading  timber 
for  the  bridge  :  Gillenwater  v.  Madison  and  Indiana  Railroad  Co.,  5  Ind.  R.  340  ; 
the  injured  person  was  held  to  be  clothed  with  all  the  right  and  character  of  a 
passenger  and  a  stranger ;  and  that  he  was  not  to  be  considered  as  standing  on 
the  same  footing  as  ordinary  employees  and  fellow-servants  of  the  company. 

If  this  party  had  been  invited  to  go  in  the  train  as  passenger,  or  had  taken  a 
seat  in  the  passenger-car,  or  had  been  taken  on  board  the  train  in  the  character 
of  a  passenger,  and  the  conductor  had  merely  waived  his  right  to  demand  fare 
as  an  act  of  liberality  or  courtesy,  and  had  then  allowed  him  to  pass  into  the 
baggage-car  to  ride  there,  the  case  would  have  been  quite  different,  and  might 
have  fallen  within  the  reasoning  and  the  principles  of  these  adjudicated  cases. 
The  benefit  of  this  act  was  plainly  intended  for  those  only  who  stand,  strictly 
speaking,  in  the  relation  of  passengers,  and  between  whom  and  the  carrier  there 
exists  the  privity  of  contract,  with  or  without  fare  actually  paid,  and  the  pecu- 
liar responsibilities  which  are  implied  in  that  relation  and  depend  wholly  upon 
it.  Where  the  relation  is  properly  that  of  master  and  servant  only,  this  partic- 
ular clause  of  the  act  has  no  application.  We  think  this  matter  was  not  fairly 
nor  correctly  laid  before  the  jury  by  the  instructions  of  the  court  below. 

Again,  even  if  the  deceased  party  would  be  considered  as  having  been  in  any 
proper  sense  a  passenger,  there  would  not  be  the  least  doubt  that  he  himself 
neglected  all  precautions  and  voluntarily  placed  himself  in  a  position  which  he 
knew  to  be  the  most  dangerous  on  the  train  for  passengers.  A  baggage-car  is 
certainly  no  place  for  a  passenger,  and  as  such  the  proof  shows  he  had  no  busi- 
ness to  be  there  at  all.  We  are  aware  that  it  had  been  held  in  some  cases,  that 
if  a  passenger,  who  is  travelling  as  such,  is  allowed  to  go  into  the  baggage-car 
or  into  a  part  of  the  baggage-car  which  is  used  as  a  post-office,  where  passen- 
gers are  sometimes  permitted  to  be,  as  in  Carrol  v.  New  York  and  New  Haven 
Railroad  Co  ,  1  Duer,  571,  and  while  there  an  accident  and  injury  occur,  by 
reason  of  negligence  on  the  part  of  the  company,  and  under  such  circumstances 
that  his  being  in  that  place  cannot  be  said  to  have  materially  contributed  to 
produce  the  accident  or  injury,  the  defendant  would  still  be  held  liable.  In 
many  cases  of  this  kind,  it  might  be  difficult  to  determine  whose  negligence  had 
been  the  real  cause  of  the  injury. 

But  any  question  of  this  nature  is  removed  from  our  consideration  in  thi* 
case  by  force  of  another  statute  which  finds  an  apt  and  just  application  here. 

By  the  64th  section  of  the  Act  concerning  Railroad  Associations,  Rev.  Stat. 
1855,  p.  430,  approved  one  day  only  after  the  act  in  question,  it  is  expressly  pro- 
vided as  follows :  — 

"  In  case  any  passenger  on  any  railroad  shall  be  injured  while  on  the  platform 


§131a.  INJURIES    BY    FELLOW-SERVANTS.  537 

of  a  car,  or  in  any  baggage,  wood,  or  freight-car,  in  violation  of  the  printed  reg- 
ulations of  the  company,  posted  up  at  the  time  in  a  conspicuous  place  inside  of 
its  passenger-cars,  then  in  the  train,  such  company  shall  not  be  liable  for  the  in- 
jury. Provided,  said  company  at  the  time  furnish  room  inside  its  passenger- 
cars  sufficient  for  the  proper  accommodation  of  its  passengers." 

This  provision  is  by  the  57th  section  of  the  same  act  made  applicable  to  all 
existing  railroads  in  this  State  :  Ibid.,  p.  43S.  Under  this  section  the  exemption 
of  the  company  is  made  to  depend  upon  a  violation  by  the  passenger  of  the 
printed  regulation  hung  up  in  the  passenger-cars  only.  They  are  not  required 
to  be  posted  up  in  a  baggage-car :  it  is  presumed  that  no  j)assenger  -will  ever  be 
found  there.  There  was  evidence  in  the  case  tending  to  prove  that  the  provis- 
ion of  the  statute  had  been  complied  with  on  the  part  of  the  defendant ;  but  the 
printed  forms  used  had  been  changed  since  that  time,  and  no  copy  of  the  for- 
mer cards  had  been  found,  and  on  proof  made  of  the  loss  of  them  secondary 
evidence  was  offered  to  prove  their  contents.  This  evidence  was  excluded  as 
irrelevant  and  having  no  bearing  upon  the  case.  In  the  view  we  have  taken 
of  this  statute  the  evidence  was  certainly  very  material  and  should  have  been 
admitted.  It  is  true  such  notice  would  have  given  this  party  no  information,  for 
the  reason  he  did  not  go  in  the  passenger-car ;  the  evidence  tended  to  show  that 
he  was  in  tact  well  acquainted  with  these  regulations;  and  this  consideration, 
so  far  from  weighing  anything  in  his  favor,  would  rather  tend  to  strengthen  the 
inference  that  he  was  not  a  passenger  at  all.  This  statute  proceeds  again  upon 
the  general  principles  of  law  in  relation  to  contributory  negligence,  and  it  sup- 
poses that  a  passenger  who  has  had  the  warning  of  this  notice,  and  yet  has 
placed  himself  in  a  situation  so  dangerous  as  a  baggage-car,  is  to  be  considered 
as  contributing  by  his  own  negligence  to  produce  the  injury,  and  therefore  that 
the  company  is  not  to  be  held  liable  in  such  cases. 

We  think  that  the  first  and  second  instructions  asked  for  by  defendant  should 
have  been  given,  and  that  the  fifth,  sixth,  and  seventh  instructions  asked  for  by 
plaintiff  should  have  been  refused.  It  is  not  deemed  necessary  more  particu- 
larly to  notice  the  other  instructions. 

The  judgment  is  reversed  and  the  cause  remanded.  The  other  judges 
concur. 

The  foregoing  opinion  seems  to  us  to  present  several  interesting  practical 
points,  in  a  very  judicious  and  sensible  light.  It  is  sometimes  difficult  to  deter- 
mine, with  exact  precision,  when  a  person  ceases  to  be  an  employee  of  the  road 
and  becomes  a  passenger.  There  is  perhaps  no  fairer  test  than  the  one  pre- 
sented in  this  case,  to  allow  his  own  claim  and  conduct  at  the  time,  and  the  ac- 
quiescence of  the  company,  to  determine  that  question.  At  the  time,  one  who 
has  recently  been  in  the  employment  of  the  company  has  a  motive  to  claim  the 
privileges  of  the  employment,  by  passing  without  the  payment  of  fare.  And  if 
he  claims  the  privilege,  and  it  is  acceded  to  by  the  officers  of  the  company, 
there  is  great  injustice  in  allowing  the  person  at  the  same  time  to  hold  the  com- 
pany up  to  the  higher  responsibility  which  it  owes  to  passengers,  from  whom  it 
derives  revenue.  It  should  therefore  be  made  to  appear,  that  one  who  passes 
in  the  character  of  an  employee  of  the  road  was  really  a  passenger,  before  he 


538  LIABILITY    FOE    ACTS   OF   AGENTS   AND    SUB-AGENTS.        §  132. 

*SECTION    IV. 
Injuries  by  defects  in  Highways  caused  by  Company's  Works. 

1 .  Liable  for  injuries  caused  by  leaving  streets  |    7.  Bound  to  keep  highways  in  repair. 

in  insecure  condition.  I    8.  Municipalities  not  responsible  for  injuries 

2.  Municipalities  liable  primarily  to  travellers  i  by  such  grant, 
suffering  injury.                                          |    9.   Canal  company  not  excused  from  main- 


3.  They  may  recover  indem  n  ity  of  the  company, 

4.  Towns  liable  to  indictment.    Company  lia- 

ble to  mandamus  or  action. 

5.  Construction  of  a  grant  to  use  streets  of  a 

city. 

6.  Such  grant  does  not  give  the  public  any 

right  to  use  the  tracks. 


taining  farm  accommodations  by  rail- 
way interference. 

10  Railway  track  crossing  private  way. 

11.  One  being  wrong-doer  in  opening  compa- 
ny's gates  cannot  recover. 


§  132.  1.  Where  a  public  company  has  the  right,  by  law,  of 
taking  up  the  pavement  of  the  street,  the  workmen  they  employ 
are  bound  to  use  such  care  and  caution  in  doing  the  work  as 
will  protect  the  king's  subjects,  themselves  using  reasonable  care, 
from  injury.  And  if  they  so  lay  the  stones  as  to  give  such  an 
appearance  of  security  as  would  induce  a  careful  person,  using 
reasonable  caution,  to  tread  upon  them,  as  safe,  when  in  fact 
they  are  not  so,  the  company  will  be  answerable  in  damages  for 
any  injury  such  person  may  sustain  in  consequence.1 

And  in  a  more  recent  case,2  a  canal  and  railway  company,  as 
early  as  the  28  Geo.  2.,  had  acquired  the  right,  by  act  of  parlia- 
ment, to  construct  a  canal  and  take  tolls  thereon,  and  had  built 
the  same  across  an  ancient  highway  near  St.  Helens,  a  small 
village,  and  had  made  a  swivel  bridge  across  the  canal  for  the 
passage  of  the  highway  ;    and  by  subsequent  acts,  reciting  the 

can  fairly  be  allowed  to  demand  the  indemnity  -which  passengers  may  by  law 
require.  If  the  person  assumes  one  character  for  advantage,  and  the  company 
accede  to  the  claim,  he  ought  not  to  be  allowed  the  benefits  of  any  other  char- 
acter, unless  it  is  very  clear  such  was  his  real  position,  and  that  this  was  under- 
stood by  the  company. 

The  effect  of  free  passes,  and  of  the  passenger  being  out  of  his  place  in  the 
carriages,  is  very  fairly  presented,  as  it  seems  to  us,  in  the  foregoing  opinion, 
and  the  principal  cases  are  referred  to  upon  all  the  points. 

1  Drew  v.  The  New  River  Co.,  6  Carr.  &  P.  754. 

2  Manley  v.  The  St.  Helens  Canal  &  Railw.  Co.,  2  H.  &  N.  840. 

*391 


§  132.       DEFECTS  IN  HIGHWAYS  CAUSED  BY  COMPANY'S  WORKS.        539 

existence  of  such  works,  all  persons  were  to  have  free  liberty 
with  boats  to  navigate  the  canal  for  the  transportation  of  goods, 
and  penalties  were  imposed  upon  such  persons  as  should  leave 
open  the  drawbridges.  The  company  maintained  the  works  and 
received  a  toll  from  all  others  using  them.  A  boatman  having 
opened  the  swivel  bridge,  to  allow  his  boat  to  pass  through,  in 
the  night  time,  a  person  walking  along  the  road  fell  into  the 
canal  and  was  drowned,  just  as  the  boat  was  coming  up.  When 
the  bridge  was  open  the  highway  was  wholly  unfenced.  Two 
lamps  had  formerly  been  kept  burning,  of  which  one  had  been 
removed  and  the  other  was  out  of  repair  at  the  time.  The  jury 
found  that  the  deceased  was  drowned  by  reason  of  the  neglect  of 
reasonable  precautions  on  the  part  of  the  canal  company,  without 
any  fault  on  his  own  part. 

Held  that  the  defendants,  having  a  beneficial  interest  in  the 
tolls,  were  liable  to  an  action,  the  same  as  any  owner  of  private 
property  would  be  for  a  nuisance  arising  therefrom.  That  the 
bridge  being  in  the  possession  of  defendants,  the  action  was  prop- 
erly brought  against  them  and  not  against  the  boatman.  That 
the  passing  the  subsequent  acts,  recognizing  the  existence  of  the 
bridge,  was  not  a  legislative  declaration  of  its  sufficiency. 

It  was  further  held,  that  even  if  the  bridge  had  been  sufficient 
at  the  time  of  its  erection,  it  was  the  duty  of  the  company  so  to 
alter  and  improve  its  structure,  from  time  to  time,  as  at  all  times 
to  maintain  a  bridge  sufficient,  with  reference  to  the  existing 
state  of  circumstances,  and  that  the  jury  were  warranted  in  con- 
sidering the  bridge,  in  the  state  in  which  it  was,  insufficient. 

2.  But  it  has  been  held,  that  where  such  companies,  having 
the  power,  by  law,  to  cut  through  and  alter  highways,  either 
temporarily  or  permanently,  do  it  in  such  a  manner  as  to  leave 
them  unsafe  for  travellers,  who  in  consequence  sustain  injury 
without  fault  on  their  part,  that  the  towns  or  cities  in  which 
such  highways  or  public  streets  are  situated  are  primarily  lia- 
ble3 for  all  such  injuries. 

3  Willard  v.  Newbury,  22  Vt.  R.  458  ;  Batty  v.  Duxbury,  24  Yt.  R.  155  ; 
Currier  v.  Lowell,  16  Pick.  170;  Buffalo  v.  Holloway,  14  Barb.  101.  In  this 
last  case  an  opinion  is  intimated,  that  a  contractor  for  such  works  is  not  liable  to 
make  such  precautionary  erections  as  may  be  requisite  to  guard  the  public 
against  injury,  no  such  provision  being  found  in  his  contract.     But  is  not  that  a 


540  LIABILITY    FOR   ACTS    OF   AGENTS   AND    SUB-AGENTS.        §  132. 

*  3.  And  it  is  also  true  that  such  towns  or  cities  may  claim  an 
indemnity  against  the  railway  companies  who  are  first  in  fault, 
and  in  such  action  recover  not  only  the  damages  but  the  costs 
paid  by  them,  and  which  were  incurred  in  the  reasonable  and 
necessary  defence  of  actions  brought  against  them  on  account  of 
the  defects  in  such  company's  works.4 

And  where  the  injury  did  not  accrue  for  more  than  six  years, 
it  was  held  that  the  railway  was  still  liable  to  indemnify  the 
town,  notwithstanding  the  bar  of  the  statute  of  limitations,  reek- 
duty  which  every  one  owes  the  public  in  all  works  which  he  undertakes  ?  In 
Barber  v.  Essex,  27  Vt.  R.  62,  the  following  points  are  decided  :  An  old  high- 
way, which  a  railway  proposes  to  use  for  its  track,  is  not  considered  as  discon- 
tinued till  the  company  have  provided  a  substitute,  or  unless  effected  by  some 
other  definite  legal  act,  or  by  an  abandonment  by  legal  authority,  or  nonuser. 
Towns  are  responsible  to  the  public  for  the  safe  condition  of  their  highways,  and 
cannot  excuse  themselves  from  the  performance  of  the  duty  by  showing  that  a 
railway  company,  proceeding  under  their  charter,  had  caused  the  defects  com- 
plained of.  The  towns  are  bound  to  watchfulness  upon  this  subject,  and  theirs 
being  a  primary  responsibilty,  they  cannot  shift  it  upon  the  railway,  whose  re- 
sponsibility is  secondary  in  regard  to  travellers  and  the  public  generally.  The 
towns  have  their  remedy  over  against  the  company.  See,  also,  to  same  effect, 
Phillips  v.  Veazie,  40  Maine  R.  96.  The  obligation  upon  the  towns  to  make 
highways  safe  and  convenient  for  travellers  continues  when  they  are  crossed  by 
railways  at  grade,  except  so  far  as  the  necessary  use  of  the  crossing  by  the  rail- 
way may  prevent  it,  and  subject  to  such  specific  directions  as  may  be  given  by 
the  county  commissioners.  Davis  v.  Leominster,  1  Allen,  182.  But  towns  are 
not  liable  for  obstructions  caused  by  telegraph  poles  which  they  have  no  right  to 
remove.  Young  v.  Yarmouth,  9  Gray,  386.  The  railway  is  also  responsible 
for  all  unlawful  obstructions  of  the  highway.  Parker  v.  Boston  &  Maine  Railw. 
Co.,  3  Cush.  107.  But  where  the  duty  of  maintaining  a  bridge  is  imposed  ex- 
clusively upon  the  railway,  the  town  is  not  responsible  for  any  defects  in  the 
same.  Sawyer  v.  Northfield,  7  Cush.  490.  See,  also,  Jones  v.  Waltham,  4 
Cush.  299  ;  Vinal  v.  Dorchester,  7  Gray,  421. 

1  Lowell  v.  Boston  &  Lowell  Railw.,  23  Pick.  24  ;  Newbury  v.  Conn.  &  Pas. 
Rivers  Railw.,  25  Vt.  R.  3  77.  The  recovery  in  these  cases  is  allowed  upon 
the  ground,  that  the  wrong  is  altogether  upon  the  part  of  the  company,  and  the 
town,  standing  primarily  liable  to  the  public  for  the  sufficiency  of  the  highways, 
and  being  virtual  guarantors  against  the  negligence  of  the  railway  company, 
may  therefore  recover  of  them  an  indemnity,  not  only  for  the  damages  they  are 
compelled  to  pay,  but  also  the  costs  and  expenses  incurred  by  them  in  defend- 
ing bona  fide  against  suits  brought  against  them  for  the  default  of  the  company. 
Duxbury  v.  Vt.  C.  Railw.,  2G  Vt.  R.  751,  752,  753  ;  Hayden  v.  Cabot,  17  Mass. 
R.  168 ;  Hamden  v.  New  Hav.  &  Northamp.  Co.,  27  Conn.  R.  158. 
*392 


§  132.        DEFECTS  IN  HIGHWAYS  CAUSED  BY  COMPANY'S  WORKS.        541 

oning  the  cause  of  action  as  accruing  at  the  date  of  the  neglect ; 
and  that  it  did  not  exonerate  the  company  guilty  of  the  neglect, 
that  they  had  leased  their  road  to  another  company  who  were 
operating  it  at  the  time  the  injury  occurred.5 

4.  And  where  the  statute  provides  that  railways  "  shall  main- 
tain and  keep  in  repair  all  bridges,  with  their  abutments,  which 
they  shall  construct  for  the  purpose  of  enabling  their  road  to 
pass  over  or  under  any  road,  canal,  highway,  or  other  way," 
and  the  company  omitted  to  perform  the  duty  in  the  manner  re- 
quired for  the  public  safety,  it  was  held  that  the  town,  within 
which  the  road  lay,  were  liable  to  indictment  for  not  keeping  it 
in  safe  repair,  and  that  they  may  compel  the  railway  company 
to  make  all  such  repairs  as  may  be  necessary,  by  writ  of  man- 
damus ;  or  if  they  have  been  obliged  to  make  expenditures 
therein,  may  reimburse  themselves  by  an  action  on  the  case 
against  the  company.6 

5.  And  where  a  railway  company  were  authorized  by  the  leg- 
islature to  construct  and  operate  their  road  through  the  streets 
of  a  city,  and  the  city  government  have  assented  to  the  location 
and  construction  upon  a  designated  route,  on  certain  conditions, 
it  was  held  that  the  municipal  authority  had  no  power  by  reso- 
lution to  annul  or  impair  the  grant  to  the  company  on  account 
of  its  failure  to  complete  the  road  within  the  time  limited  in  the 
conditions  annexed  to  their  assent."  And  that  such  condition 
was  not  to  be  regarded  as  precedent  to  the  vesting  of  the  estate 
or  franchise,  but  only  a  condition  subsequent  upon  the  non-per- 
formance of  which  the  grantor  might  elect  to  defeat  it,  but 
that  nothing  short  of  a  judicial  determination  would  operate  to 
divest  the  interest  of  the  company.7 

6.  Where  a  railway  has  been  laid  upon  a  public  street,  it  does 
not  thereby  become  public  property,  in  such  a  sense  as  to  en- 
title the  public  at  large  or  other  railway  companies  to  use  the 

5  Hamden  v.  New  H.  &  North.  Co.  &  N.  Y.  &  N.  H.  Railw.,  27  Conn.  R. 
158.  But  where  the  company  have  the  right  to  lay  their  rails  in  the  street,  they 
are  not  responsible  for  any  injury  resulting  therefrom  to  others,  unless  they 
have  been  in  fault  either  in  laying  them  down  or  in  keeping  them  safe.  Ma- 
getti  v.  New  York  &  Harlem  Railw.,  3  E.  D.  Smith,  98  :  post,  §  225,  pi.  7. 

6  State  v.  Gorham,  37  Maine  R.  451. 

1  Brooklyn  Central  Railw.  v.  Brooklyn  City  Railw.,  32  Barb.  358. 


542  LIABILITY   FOR   ACTS    OF   AGENTS    AND    SUB-AGENTS.        §  132. 

track  for  the  passage  of  carriages  constructed  for  such  use.7 
Nor  will  the  permission  of  the  municipal  authorities  for  that 
purpose  give  any  such  right.7 

7.  Where  a  railway  company  is  required  to  construct  its  road 
so  as  not  to  obstruct  the  safe  and  convenient  use  of  the  highway, 
this  is  a  continuing  obligation  requiring  the  company  to  so  main- 
tain their  road  as  to  leave  the  highway  safe  and  convenient  for 
public  use  ;  but  this  will  not  exonerate  the  towns  from  their 
primary  responsibility.8 

8.  Cities  or  towns  are  not  liable  for  damages  resulting  from 
the  proper  exercise  of  authority  in  permitting  railway  tracks  to 
be  laid  in  the  streets,  or  in  raising  the  grade  of  streets,  unless 
they  exceed  their  lawful  authority  in  this  respect.9  And  it  is 
here  said  to  be  a  legitimate  use  of  a  street  to  allow  a  railway 
track  to  be  laid  in  it. 

9.  Where  a  canal  company  had  constructed  a  bridge  as  part 
of  the  farm  accommodations  of  an  adjoining  land-owner  which 
the  company  were  bound  to  maintain,  and  a  railway  company 
by  subsequent  legislative  grant  had  laid  its  track  along  the  line 
of  the  canal,  and  in  consequence  had  been  compelled  to  alter 
the  construction  of  the  bridge  so  as  to  render  it  more  expensive 
to  maintain  the  same,  it  was  held  the  canal  company  were  not 
thereby  exonerated  from  maintaining  the  bridge,  but  were  liable 
to  the  land-owner  the  same  as  before  the  alteration  by  the  rail- 
way company,  notwithstanding  any  liability  which  might  rest 
upon  the  railway  company.10 

10.  Where  a  railway  crossed  on  a  level  a  considerably  fre- 
quented footpath,  and  there  was  no  servant  of  the  company  at 
the  crossing  to  warn  persons  of  the  approach  of  the  trains,  the 
view  being  somewhat  obstructed  by  the  pier  of  the  bridge,  but  a 
person  before  reaching  the  track  could  see  nearly  three  hundred 
yards  either  way  along  the  line,  and  the  plaintiff's  wife,  while 
crossing  the  line  at  the  spot  was  run  over  and  killed,  it  was  held 
that  the  fact  of  the  company  not  keeping  a  servant  at  the  cross- 
ing to  warn  persons  of  the  approach  of  trains,  was  not  evidence 
of  negligence  to  go  to  the  jury.11 

8  Wellcome  v.  Leeds,  51  Me.  E.  313. 

9  Murphy  v.  City  of  Chicago,  29  111.  R.  279. 

10  Ammermon  v.  Wyoming  Land  Co.,  40  Penn.  St.  256. 

11  Stapley  v.  London,  Brighton  &c,  Railw.  Co.,  11  Jur.  N.  S.  954. 


§  132.        DEFECTS  IN  HIGHWAYS  CAUSED  BY  COMPANY'S  WORKS.        543 

11.  And  where  it  was  made,  by  statute,  the  duty  of  a  railway 
company  to  maintain  gates  at  all  level  crossings  of  highways,  and 
to  have  persons  to  open  and  shut  them  when  any  one  wished  to 
pass,  but  at  all  other  times  they  were  to  be  kept  shut,  and  a  per- 
son coming  along  the  highway  when  no  servant  of  the  company 
was  present,  as  he  should  have  been,  to  open  and  shut  the  gates, 
the  plaintiff  having  waited  a  reasonable  time  opened  the  gates 
himself  in  order  that  he  might  be  able  to  proceed  on  his  journey, 
and  in  doing  so  was  injured  by  the  closing  of  the  gates,  which 
were  so  constructed  as  to  fall  back  into  their  places  with  their 
own  weight,  it  was  held  the  action  would  not  lie,  one  judge  dis- 
senting.12 This  case  was  decided  mainly  upon  the  ground  that 
by  the  act  of  parliament  requiring  the  gates  to  be  kept  closed, 
except  when  opened  by  the  servants  of  the  company,  it  amounted 
to  a  virtual  prohibition  of  any  one  crossing  the  railway  at  any 
other  time,  and  if  the  plaintiff  found  no  servant  of  the  company 
to  open  the  gate,  it  was  his  duty  to  wait  until  he  could  find  one, 
and  seek  his  remedy  for  the  delay  against  the  company ;  and 
being  a  wrong-doer  in  opening  the  gate,  he  could  not  recover  of 
the  company  for  any  injury  he  thereby  sustained. 

12  Wyatt  v.  Great  Western  Railw.  Co.,  11  Jur.  N.  S.  825. 


544  LIABILITY   FOR    ACTS    OF   AGENTS    AND    SUB-AGENTS.        §  133. 

♦SECTION    V. 

Liability  for  Injury  in  the  Nature  of  Torts. 

1.  Eailivay   crossings   upon   a   level  always'    6.  Not  liable  for  injury  to  cattle  trespassing, 

dangerous.  unless  guilty  of  ivilful  wrong. 

2.  Company  not  excused  by  use  of  the  signals  \    7     General  definitions  of  company's  duty. 

required  by  statute.  8.  Action  accrues  from  the  accruing  of  the 

3.  Party  cannot  recover  if  his  own  act  con- 

tributed to  injury. 

4.  But  company  liable  still  if  they  might  have 

avoided  the  injury. 

5.  If  company  omit  proper  signals,  not  liable, 

unless  thed  produce  the  injury. 


injury. 
9.    Where  injury  is  wanton,  jury  may  gh-e 

exemplary  damages. 
1 0.   One  ivho  follows  direction  of  gate-keeper 
excused. 


§  133.  1.  We  have  discussed  the  subject  of  this  chapter,  in 
general,  in  former  sections.1  We  shall  here  refer  to  some  cases, 
where  railway  companies  have  been  held  liable  for  injuries  to 
persons,  in  no  way  connected  with  them  by  contract  or  duty. 
The  subject  of  railway  crossings,2  on  a  level  with  the  highway, 
has  been  before  alluded  to,  as  one  demanding  the  grave  consider- 
ation of  the  legislatures  of  the  several  states.  It  causes  always 
a  most  painful  sense  of  peril,  especially  where  there  is  any  consid- 
erable travel  upon  the  highway,  and  is  followed  by  many  painful 
scenes  of  mutilation  and  death,  under  circumstances  more  dis- 
tressing, if  possible,  than  even  the  accidents,  so  destructive  some- 
times to  railway  passengers. 

2.  In  a  case3  where  the  plaintiff  was  injured  at  a  railway 
crossing,  by  the  collision  of  an  engine,  it  was  held  that  where  the 
statute  required,  at  such  points,  certain  specified  signals,  the 
compliance  with  the  requirements  of  the  statute  will  not  excuse 

1  Ante,  §  130,  post,  177. 

5  Ante,  §  108. 

3  Bradley  v.  Boston  &  Maine  Railw.,  2  Cush.  539.  Some  distinction  is  made 
by  the  judge,  in  trying  this  case,  between  those  cases  of  negligence  which  occur 
in  long-established  modes  of  business,  and  the  case  of  the  management  of  rail- 
way trains ;  that  in  the  former  case  usage,  if  uniform  and  acquiesced  in  by  the 
public,  may  amount  to  a  rule  of  law  ;  but  not  in  a  business  so  recent  as  the 
management  of  railway  trains.  This  view  seems  to  be  sanctioned  by  the  Su- 
preme Court  in  revising  the  case.  See,  also,  Gleason  v.  Briggs,  28  Vt.  R.  185  ; 
Linfield  v.  Old  Colony  Railway,  10  Cush.  562. 
*393 


§133.      LIABILITIES   FOR   INJURIES   IN   THE   NATURE   OF   TORTS.       545 

the  company  from  the  use  of  care  and  prudence  in  other  re- 
spects. That  it  is  not  necessarily  enough  to  excuse  the  company, 
that  they  pursued  the  usual  course  adopted  by  engineers  in  such 
cases.  The  question  of  negligence  is  one  of  fact,  in  such  cases, 
to  be  *  submitted  to  the  jury,  under  all  the  circumstances  of  the 
case,  and  to  be  determined  by  them,  upon  their  view  of  what 
prudence  and  skill  required. 

3.  But  when  the  statute  requires  certain  precautions  against 
accidents,  and  its  requirements  are  disregarded,  the  party  suffer- 
ing damage  is  not  entitled  to  recover,  if  he  was  himself  guilty  of 
negligence  which  contributed  to  the  damage.4     And  where  the 

4  Parker  v.  Adams,  12  Met.  415 ;  post,  §  177;  Macon  &  W.  Railw.  v.  Davis, 
18  Georgia  R.  679,  where  the  question  of  negligence  in  the  conductors  of  a  rail- 
way train  in  passing  a  road-crossing,  is  held  to  be  one  of  fact  depending  upon 
the  circumstances  of  each  particular  case.  Dascomb  v.  Buffalo  &  State  Line 
Railw.,  27  Barb.  221.  But  the  omission  of  any  statute  duty  by  railway  com- 
panies at  the  time  and  place  where  an  accident  occurs  is  prima  facie  evidence 
of  liability.  Aug.  &  Sav.  Railw.  v.  McElmurry,  24  Ga.  R.  75.  In  Johnson  v. 
Hudson  River  Railw.,  6  Duer,  633,  where  the  plaintiff's  husband  was  killed  in 
the  streets  of  the  city  of  New  York  by  one  of  defendants'  freight  cars  in  the 
night  time,  it  being  very  dark,  and  the  company  using  neither  lights  nor  bells  to 
guard  against  accident;  it  was  held,  that  although  the  law  required  of  defendants 
only  ordinary  care  towards  the  deceased,  it  must  be  measured  by  the  degree  of 
injury  against  which  such  care  is  to  be  exercised,  which,  under  the  circum- 
stances, was  so  extreme  as  to  justify  the  court  in  telling  the  jury  that  defend- 
ants were  required  to  use  every  precaution  in  their  power  to  ensure  the  safety 
of  persons  passing ;  and  that  if  lights  or  bells  would  have  contributed  to  that 
end,  they  were  culpable  for  not  using  them  ;  and  that  in  this  form  the  question 
of  negligence  was  properly  submitted  to  the  jury  as  one  of  fact. 

It  was  also  held  that  the  deceased  was  only  bound  to  the  exercise  of  ordinary 
care,  and  that  his  being  found  upon  the  track  was  not  sufficient  ground  to  pre- 
clude the  recovery. 

In  an  important  case,  Shaw  v.  Boston  &Worcester  Railw.,  8  Gray,  45,  the  subject 
of  injuries  at  railway  and  highway  intersections  is  a  good  deal  discussed.  Post, 
§  1 79,  pi.  9  &  n.  It  is  here  decided  that  the  record  of  the  county  commissioners  stat- 
ing that  in  their  opinion  no  flagman  at  the  crossing  was  necessary,  is  not  competent 
to  show  due  care  on  the  part  of  the  company  in  omitting  that  precaution.  The 
court  said  it  was  the  duty  of  the  judge  in  charging  the  jury  in  regard  to  the  pre- 
cautions required  to  be  taken  by  a  railway  company  at  a  highway  crossing,  to  dis- 
tinguish between  such  circumstances  as  could  have  been  reasonably  anticipated, 
and  such  as  would  have  required  extraordinary  precautions,  but  were  of  so  ex- 
traordinary a  character  as  not  to  have  been  anticipated.  It  was  also  held  a 
fatal  variance  that  the  proof  showed  the  injury  to  to  have  occurred  some  rods 

VOL.  I.  35  *394 


546  LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §  133 

plaintiff's  farm  was  intersected  by  the  line  of  a  railway,  and  he, 
with  a  wagon  and  one  horse,  having  his  son  and  a  servant  with 
him,  drove  upon  a  trot  directly  over  the  track  at  a  public  cross- 
ing, without  taking  the  slightest  precaution  to  ascertain  whether 
a  locomotive  was  coming,  it  was  held  that  he  was  guilty  of  great 
carelessness,  and  that  he  could  not  recover  for  any  damage  there- 
by sustained,  and  that  it  was  immaterial  whether  the  train  was 
on  time  or  not.  It  was  also  held,  that  the  question  of  negligence, 
in  a  case  of  this  character  where  the  testimony  was  all  one  way, 
was  one  of  law  to  be  decided  by  the  court,  and  could  not  be  left 
to  the  jury.5  The  company  are  bound  to  maintain  a  sign-board 
and  other  precautions,  required  by  statute  at  railroad  crossings, 
at  the  place  where  an  open  travelled  street  in  a  city  intersects 
the  railway,  although  the  street  has  not  been  so  laid  out  and  es- 
tablished by  the  municipal  authorities  as  to  make  the  city  respon- 
sible for  damages  occasioned  by  defects  therein,  such  passage 
being  a  "  travelled  route  "  within  the  meaning  of  the  statute.6 
But  it  has  been  held,  that  the  company  is  not  liable  for  not  con- 
structing an  under  pass  for  the  accommodation  of  the  public 
travel,  on  a  way  which  was  not  laid  out  agreeably  to  the  statute, 
or  been  in  use  by  the  public  twenty  years.7  It  is  such  negli- 
gence for  a  deaf  man  to  drive  an  unmanageable  horse  across  a 
railway  track  when  a  train  is  approaching,  that  he  cannot  re- 
cover for  any  damage  sustained.  He  should  wait  and  avoid  ex- 
posure.8 

out  of  the  highway  where  the  plaintiff's  horse  drew  the  carriage  by  reason  of 
being  frightened  by  defendants' locomotive  engine,  the  declaration  charging  it  to 
have  occurred  while  travelling  in  the  highway,  and  the  declaration  cannot  be 
amended  after  verdict  so  as  to  cure  the  variance.  Also  that  the  degree  of  care 
required  of  the  company  and  travellers,  at  a  railway  and  highway  crossing,  is  the 
same,  being  that  which  men  of  ordinary  capacity  would  exercise  under  like  cir- 
cumstances. The  fact  that  a  collision  occurred  at  a  railway  crossing,  and  that  the 
plaintiff  was  in  no  fault,  is  not  proof  that  the  defendant  was  in  fault. 

*  Dascomb  v.  Buffalo  &  State  Line  Railw.,  27  Barb.  221  ;  Mackey  v.  New 
York  Central  Railw.,  27  Barb.  528.  It  would  seem  to  be  the  duty  of  one  about 
to  pass  a  railway  to  exercise  watchfulness  to  know  that  a  train  is  not  approach- 
ing,    lb. 

8  Whitaker  v.  Boston  &  Maine  Railw.,  7  Gray,  98.  But  later  statutes  adopt 
a  different  phraseology. 

T  Northumberland  v.  At.  &  St.  Law.  R.  Co.,  35  N.  H.  R.  574. 

8  111.  Cent.  R.  Co.  v.  Buckner,  28  111.  R  299. 


§  133.      LIABILITIES    FOR   INJURIES   IN    THE   NATURE    OF   TORTS.       547 

4.  If  the  plaintiff's  negligence  did  not  contribute  to  his  injury, 
it  will  not  preclude  his  recovering  for  the  consequences  of  defend- 
ant's wrong.9     If  the  wrong  on  the  part  of  the  defendant  is  so 

9  Kennard  v.  Burton,  25  Maine  R.  39.  In  the  newspaper  report  of  a  recent 
trial  in  the  Supreme  Court  of  Pennsylvania,  the  court  are  reported  to  have 
charged  the  jury,  as  matter  of  law,  that  "  a  person  about  to  cross  a  railway  track 
[with  a  team]  is  in  duty  bound  to  stop  and  look  in  both  directions,  and  listen  be- 
fore crossing."  It  has  recently  been  decided  by  the  full  bench  Supreme  Court  in 
Massachusetts,  ante,  n.  4,  that  it  is  not  competent  for  the  judge  to  lay  down  any 
definite  rule,  as  to  the  duty  of  the  company,  in  regard  to  proper  precautions  in 
crossing  highways ;  that  the  circumstances  attending  such  crossings  are  so  in- 
finitely diversified  that  it  must  be  left  to  the  jury  to  determine  what  is  proper 
care  and  diligence  in  each  particular  case.  This  we  apprehend  is  the  true  rule 
upon  that  subject,  both  as  to  the  company  and  travellers  upon  the  highway,  and 
that  it  will  finally  prevail,  notwithstanding  occasional  attempts  to  simplify  the 
matter  by  definitions.  The  Pennsylvania  case  referred  to  is  that  of  O'Brien  v. 
Philadelphia,  Wilmington,  &  Baltimore  Railw.,  10  Am.  Railw.  T.  No.  10,  13. 
The  following  extracts  from  the  charge  to  the  jury  may  serve  to  explain  the 
views  of  the  court. 

But  if  the  jury  find 'that  the  company  were  not  faultless,  that  they  did  or 
omitted  anything  that  would  constitute  negligence  as  I  have  defined  it,  the 
next  inquiry  will  relate  to  the  conduct  of  the  plaintiff. 

He  was  a  carter,  and  the  same  general  principles  apply  to  him  as  to  the  de- 
fendants. He  was  bound  to  pursue  his  business  with  all  that  regard  to  the  safety 
of  himself  and  others  which  prudent  men  commonly  employ  in  like  occupations. 
Did  he  demean  himself  in  that  manner?  In  answer  to  the  6th  and  7th  points 
on  the  part  of  the  defendants,  I  instruct  the  jury  that  a  carter,  or  any  man  hav- 
ing charge  of  a  team,  but  who  is  about  to  cross  a  railroad  at  grade  on  which 
locomotives  run,  is  bound  to  stop  and  listen,  and  look  in  both  directions,  before 
he  permits  his  team  to  set  foot  within  the  rails,  and  omission  to  do  so  is  negli- 
gence on  his  part.  This  rule  of  law  is  demanded  by  a  due  regard  to  the  safety 
of  life  and  property,  both  his  own  and  that  which  is  passing  on  the  railroad. 
From  the  diagram  in  evidence  it  is  perfectly  apparent  that  the  plaintiff'  could 
have  seen  the  approaching  train  if  he  had  looked.  If  he  saw  it,  it  was  extreme 
rashness  in  him  to  allow  his  lead  horse  to  advance  so  far,  and  if  he  did  not  see 
it,  it  must  have  been  because  he  did  not  look. 

I  state  the  general  rule,  but  whether  it  is  applicable  to  the  plaintiff  in  the  cir- 
cumstances which  surrounded  him  is  for  the  jury.  A  few  yards  on  his  right, 
some  witnesses  think  seventy,  there  was  a  gravel  train,  with  a  locomotive  at- 
tached, standing  on  one  of  the  tracks,  and  liable  to  start  any  moment,  and  on 
his  left,  according  to  his  witnesses,  was  the  omnibus  in  close  proximity  to  the 
crossing. 

Now,  for  these  circumstances  the  plaintiff  was  in  no  wise  responsible,  and  the 
question  is,  whether  they  constituted  any  excuse  for  his  not  looking  up  the  road. 

In  Brooks  v.  Buffalo  &  Niagara  Falls  Railw.,  25  Barb.  600,  it  is  said  if  one  cross 


5-18  LIABILITY   FOR   ACTS   OF   AGENTS   AND   SUB-AGENTS.       §  133. 

wanton  and  gross  as  to  imply  a  willingness  to  inflict  the  injury, 
plaintiff  may  recover,  notwithstanding  his  own  ordinary  neglect.10 
And  this  is  always  to  be  attributed  to  defendant,  if  he  might 
have  avoided  injuring  plaintiff,  notwithstanding  his  own  negli- 
gence. So,  too,  if  the  neglect  on  the  part  of  the  plaintiff  is  not 
the  proximate  cause  of  the  injury,  it  will  not  preclude  a  re- 
covery.11 

5.  If  a  railway  wholly  omit  to  give  the  proper  signal  at  a  road- 
crossing,  they  are  not  necessarily  liable  for  injury  to  one  crossing 
at  that  moment,  whose  team  took  fright  and  injury  ensued.  It 
should  be  shown  that  the  omission  had  some  tendency  to  pro- 
duce the  loss.12  The  statute  requiring  railway  companies  to 
make  signals  in  all  cases  of  crossing  highways,  applies  to  cross- 
ings above  or  below  the  grade  of  the  highway,  as  well  as  to  those 
at  grade.13 

6.  A  conductor  was  held  not  liable  for  running  the  engine  over 
an  animal  trespassing  upon  the  track,  unless  he  acted  wilfully.14 
So,  too,  where  the  train  passed  over  slaves  asleep  upon  the  track, 
the  company  were  held  not  liable.15 

a  railway  at  grade  with  a  team,  where  the  danger  may  easily  be  seen  by  looking 
for  it,  and  especially  where  he  drives  upon  the  railway  track  and  there  stops, 
looking  in  an  opposite  direction  from  an  approaching  train  till  it  strikes  him,  he 
is  guilty  of  such  negligence  as  will  preclude  a  recovery. 

10  Wynn  v.  Allard,  5  Watts  &  Serg.  524;  Kerwhaker  v.  C.  C.  &  Cincinnati 
Railw.,  3  Ohio  State,  172,  188. 

11  Trow  v.  Vermont  Central  Railw.,  24  Vt.  R.  487;  Isbell  v.  N.  Y.  &  N.  H. 
Railw.  Co.,  27  Conn.  R.  393  ;  Chicago  &  R.  I.  Railw.  v.  Still,  19  Illinois  R.  499. 

12  Galena  &  Ch.  Railw.  v.  Loomis,  1 3  Illinois  R.  548.  A  railway  is  not  liable 
for  an  injury  which  happens  in  crossing  a  railway,  in  consequence  of  the  station- 
ary cars  of  the  company,  upon  their  track,  obstructing  the  view  of  the  plaintiff 
in  his  approach  to  the  road.     Burton  v.  The  Railw.  Co.,  4  Harr.  252.     See 

.also  Morrison  v.  Steam  Nav.  Co.,  20  Eng.  L.  &  Eq.  267,  455. 

13  People  v.  New  York  Central  Railw.,  25  Barb.  199. 

14  Vandegrift  v.  Rediker,  2  Zab.  185.  But  where  the  act  is  wrongful,  the  action 
may  be  against  both  the  engineer  and  fireman.     Suydam  v.  Moore,  8  Barb.  358. 

15  Herring  v.  Wil.  &  R.  Railw.,  10  Iredell,  402.  In  this  case,  it  is  held  that 
the  conductor  might  not  be  chargeable  with  the  same  degree  of  culpability  in 
driving  his  train  over  a  rational  creature,  or  one  who  seemed  to  be  such,  and  in 
the  exercise  of  his  faculties,  as  in  doing  the  same  when  the  obstruction  was 
a  brute  animal.  And  in  the  case  of  running  over  a  person  asleep,  or  a  deaf 
mute,  or  an  insane  person,  some  indulgence  is,  doubtless,  to  be  extended,  inas- 
much as  the  peculiar  state  of  the  person  might  not  be  readily  discoverable  by 


§  133.      LIABILITIES   FOR   INJURIES  IN   THE  NATURE   OF   TORTS.       549 

*  7.    The  duty  required  of  railways  towards  those  who  are,  at 
the  time,  in  the  exercise  of  their  legal  rights,  is  the  possession  of 

those  in  charge  of  the  train,  if  not  they  would  have  a  right  to  calculate  that 
they  would  conduct  like  other  rational  beings,  and  step  off  the  track  as  the 
engine  approaches.  But  in  East  Tennessee  &  Ga.  Railw.  v.  St.  John,  5  Sneed. 
524,  it  was  held  that  the  company  were  responsible  for  killing  a  slave  asleep  on 
the  track,  which  might  have  been  seen  by  the  conductor  a  quarter  of  a  mile,  but 
which  was  mistaken  for  the  garments  of  the  laborers,  and  no  signal  given  in 
consequence. 

The  practice  of  allowing  persons  to  walk  upon  a  railway  track  is  a  vicious  one, 
and  one  which  would  not  be  tolerated  in  any  state  or  country  where  the  railways 
are  under  proper  surveillance  and  police.  But  as  it  now  is  in  many  parts  of  this 
country,  an  engineer  will  find  some  person  upon  his  track  every  mile,  and,  in 
some  places,  every  few  rods.  If  he  were  required  to  check  the  train  at  every 
such  occurrence,  it  would  become  an  intolerable  grievance.  If  men  will  insist 
upon  anything  so  absurd  as  to  be  permitted  to  walk  upon  a  railway  track  at  will, 
they  must  expect  that  those  who  are  bereft  of  sense,  but  preserve  the  form  of 
humanity,  when  they  chance  to  come  into  the  same  peril,  will  perish  ;  not  so 
much  from  their  own  infirmities,  as  from  the  absurd  practices  of  those  who  have 
no  such  infirmities.  And  their  destruction  is  not  so  much  attributable,  perhaps, 
to  the  fault  of  the  railways,  as  to  the  bad  taste,  and  lawlessness  of  public  opinion, 
in  making  such  absurd  demands  upon  the  indulgence  of  railways.  And,  if  it  be 
urged  that  the  companies  might  enforce  their  rights,  and  keep  people  off  their 
tracks,  it  would  be  found,  we  fear,  upon  trial,  that  such  arguments  are  unsound. 
The  companies,  probably,  could  not  enforce  such  a  regulation,  in  many  parts  of 
the  country,  without  exciting  a  perplexing  and  painful  prejudice,  to  such  an  ex- 
tent as  to  endanger  the  safety  of  their  business.  The  only  effectual  remedy  will 
be  found  in  making  the  act  punishable  by  fine  and  imprisonment,  as  is  done  in 
England  and  some  of  the  American  states,  and  in  a  strict  enforcement  of  the 
law  upon  all  offenders.  Every  one  can  see  that,  if  sane  persons  were  excluded 
from  the  railway,  the  sight  of  a  person  upon  the  track  would  at  once  arrest  the 
attention  of  conductors  of  trains,  and  there  would  be  little  danger  comparatively 
of  their  destruction,  whereas  now,  persons  bereft  of  sense  are  almost  sure  to  be 
run  over. 

Persons  are  so  frequently  upon  the  track  that  the  conductors  have  no  alterna- 
tive but  to  push  their  trains  upon  them.  For  such  persons  are,  not  unfrequently, 
so  reckless,  that,  if  they  could  alarm  engineers,  they  would  be  found  trying  such 
experiments  every  hour. 

One  who  was  engaged  in  sawing  wood  upon  the  track  of  a  railway  by  direc- 
tion of  the  superintendent  of  the  company,  and  is  injured  by  the  engine  of 
another  company,  lawfully  upon  the  track,  cannot  recover  of  the  latter  company, 
although  their  engineer  was  guilty  of  carelessness,  being  himself  also  in  fault. 
Railroad  v.  Norton,  24  Penn.  St.  465.  In  Ranch  v.  Lloyd  &  Hill,  31  Penn.  St. 
358,  it  was  decided,  that  where  the  state  owned  the  railway,  and  its  regula- 
tions were  prescribed  by  the  canal  commissioners,  and  the  state  supplied  the 

*395 


550     LIABILITY  FOR  ACTS  OF  AGENTS  AND  SUB- AGENTS.   §  138. 

the  most  approved  machinery,  and  such  care,  diligence,  and  skill, 
in  using  it,  as  skilful,  prudent,  and  discreet  persons  would  be  ex- 
pected to  put  forth,  having  a  proper  regard  to  the  interests  of  the 
company,  the  demands  of  the  public,  and  the  interests  of  those 
having  property  along  the  road,  exposed  to  fire,  and  to  injury  in 
*  other  modes.16  They  are,  at  least,  bound  to  exercise  as  much 
care  as  if  they  owned  the  property  along  the  line,  i.  e.  what 
would  be  regarded  as  the  duty  of  a  prudent  owner  under  all  the 
circumstances.17     It  has  been  held  that  the  company,  when  their 

motive  power,  and  allowed  persons  to  use  their  cars,  furnishing  a  conductor,  that 
such  conductor  is  the  responsible  person  in  charge  of  the  train  throughout  its 
entire  route.  That  the  agencies  provided  for  him,  whether  of  steam,  or  horse 
power,  become  his  agencies,  and  the  ultimate  responsibility  in  regard  to  their 
proper  conduct,  so  far  as  strangers  are  concerned,  rests  upon  him  and  upon  the 
owners  of  the  train,  whose  servant  he  is.  And  that  where  it  was  the  practice 
to  have  cars  pass  over  a  portion  of  the  road  by  the  force  of  gravity,  and  after 
arriving  at  a  given  point,  to  be  drawn  by  horse  power  to  the  storehouses,  and 
the  conductor  left  them  standing  across  the  usual  crossing  of  the  highway  and 
went  to  his  breakfast,  and  during  his  absence  a  lad,  seven  years  old,  attempted 
to  crawl  under  the  cars,  in  returning  from  an  errand  on  which  he  had  been  sent, 
and  by  means  of  the  starting  of  the  train  by  the  horse  power,  furnished  by  a 
stable-keeper,  by  contract  with  the  state,  and  driven  by  the  proprietors'  drivers, 
was  seriously  injured,  it  was  considered  that  the  conductor  and  his  employers 
were  responsible  for  the  injury. 

It  was  also  decided  that  where  cars  were  so  left  standing  in  the  highway  un- 
necessarily, it  is  not  a  question  to  be  submitted  to  the  jury,  whether  they  con- 
stitute an  unlawful  obstruction.  As  matter  of  law,  such  obstruction,  if  it  could 
be  avoided,  is  unlawful. 

In  such  a  case,  no  greater  care  and  prudence  is  required  to  be  exercised  by 
such  -child  than  is  reasonable  to  expect  of  one  of  such  tender  years.  See  Galena 
&  Ch.  Railw.  v.  Jacobs,  20  111.  R.  4  78. 

16  Baltimore  &  Susq.  Railw.  v.  Woodruff,  4  Maryland  R.  242,  257. 

17  Quimby  v.  Vermont  Central  Railw.,  23  Vt.  R.  387.  And  where  one  was 
injured  by  the  company's  train,  at  a  road-crossing,  by  collision  between  the  com- 
pany's locomotive  and  the  carriage  in  which  the  plaintiff  was  riding,  it  was  held, 
that  the  carelessness  of  the  driver  of  the  carriage  cannot  be  shown  by  common 
reputation.  Nor  can  the  occupation  of  the  plaintiff,  and  his  means  of  earning 
support,  be  shown,  with  a  view  to  enhance  the  damages  for  such  an  injury,  un- 
less specially  averred  in  the  declaration.  Baldwin  v.  Western  Railw.,  4  Gray, 
333.  In  O'Brien  v.  Philadelphia,  Wilmington  &  Baltimore  Railw.,  10  Am. 
Railw.  Times,  No.  13,  where  plaintiff  was  injured  at  a  railway  crossing  a  high- 
way, by  collision  with  his  team,  Mr.  Justice  Woodward,  of  the  Pennsylvania 
Supreme  Court,  charged  the  jury,  that  the  plaintiff  was  only  entitled  to  com- 

*396 


§  133.      LIABILITIES   FOR  INJURIES   IN   THE  NATURE   OF   TORTS.       551 

road  passes  the  thoroughfares  of  a  city,  are  bound  to  use  extraor- 
dinary care  not  to  injure  persons  in  the  streets.18 

8.  The  general  rule,  in  regard  to  the  time  of  the  accruing  of 
the  action  is,  that  when  the  act  or  omission  causes  direct  and 
immediate  injury,  the  action  accrues  from  the  time  of  doing  the 
act,  hut  where  the  act  is  injurious  only  from  its  consequences, 
as  by  undermining  a  house  or  wall,  or  causing  water  to  flow 
back  at  certain  seasons  of  high  tide  or  high  water,  the  cause  of 
action  accrues  only  from  the  consequential  injury.19  In  the  case 
of  Backhouse  v.  Bonomi,20  it  was  held  that  no  cause  of  action 
accrued  from  defendant's  excavation  in  his  own  land,  until  it 
caused  damage  to  the  plaintiff's;  and  the  case  of  Nicklin  v.  Wil- 
liams,21 as  far  as  it  conflicts  with  this,  was  held  not  maintainable. 
The  cases  were  examined  very  thoroughly  in  the  course  of  the 
discussion  of  this  case  before  the  Queen's  Bench,  which  held  that 
the  cause  of  action  accrued  from  the  act  of  defendant,  and  in 
the  Exchequer  Chamber,  where  that  judgment  was  reversed,  and 
finally  in  the  House  of  Lords,  where  the  judgment  of  the  Ex- 
chequer Chamber  was  affirmed.  The  law  on  this  point  may  now 
be  considered  settled  in  the  English  courts.  Where  the  issue  is 
in  regard  to  the  prudent  use  of  a  highway  by  the  company,  it  is 
not  competent  to  give  evidence  of  the  mode  of  using  the  same  by 
the  company  at  other  times.22 

9.  As  a  general  rule,  in  the  English  practice,  and  in  most  of 
the  states  of  the  Union,  in  actions  for  torts,  where  the  defend- 
ant's conduct  has  been  wanton,  or  the  result  of  malice,  the  jury 

pensatory  damages,  there  being  no  pretence  of  any  intentional  wrong,  or  flagrant 
rashness,  on  the  part  of  the  agents  of  the  company. 

18  Wilson  v.  Cunningham,  3  Cal.  R.  241. 

19  Roberts  v.  Read,  16  East,  215.  Where  the  act  complained  of  was  mali- 
ciously opposing  plaintiff's  discharge  as  an  insolvent,  and  the  act  was  more  than 
six  years  before  action  brought,  but  the  consequent  imprisonment  continued 
within  the  six  years,  it  was  held  the  cause  of  action  was  barred.  Violet  v.  Simp- 
son, 30  Law  Times,  114,  Nov.  1857. 

The  admissions  of  the  corporators,  or  of  the  president,  are  not  sufficient  to 
remove  the  bar  of  the  statute  of  limitations,  in  favor  of  a  private  corporation. 
Lyman  v.  Norwich  University,  28  Vt.  R.  560. 

20  7  Jur.  N.  S.  809  ;  s.  c.  5  Jur.  N.  S.  1345  ;  4  Id.  1182. 

21  10  Exch.  259. 

22  Gahagan  v.  Boston  &  Lowell  Railw.,  1  Allen,  187. 


552  LIABILITY    FOR   ACTS    OF   AGENTS   AND   SUB-AGENTS.        §  134. 

are  allowed  to  give  damages  of  an  exemplary  character,  and  the 
term  vindictive  even  is  sometimes  used.23  But  this  is  ques- 
tioned by  some  writers,  and  in  many  cases.24 

10.  Where  a  level  crossing  over  a  railway  is  protected  by  a 
gate,  established  by  the  company  and  tended  by  one  of  its  ser- 
vants, in  conformity  with  the  law,  those  having  occasion  to  cross 
the  track,  and  who  are  injured  by  an  attempt  to  cross  when  the 
gatekeeper  assures  them  the  line  is  clear,  may  recover  such  dam- 
ages of  the  company.  It  is  the  implied  duty  of  the  gatekeeper 
to  know  when  trains  are  due,  and  to  give  correct  information  in 
that  respect,  and  not  open  the  gate  for  passage  across  the  track 
unless  he  knows  no  duly  advertised  train  is  due.  And  if  a  train 
not  advertised  to  the  gatekeeper,  or  at  a  time  not  advertised  to 
him,  is  allowed  to  pass,  whereby  injury  accrues  to  those  having 
just  occasion  to  pass  the  track,  it  is  the  fault  of  the  company.25 


SECTION    VI. 
Misconduct  of  Railway  Operatives  shoivn  by  Experts. 


1.  The  management  of  a  train  of  cars  is  so 

far  matter  of  science  and  art,  that  it  is 
proper  to  receive  the  testimony  of  experts. 

2.  In  cases  of  alleged  torts  company  not  bound 

to  exculpate. 

3.  So,  too,  the  plaintiff  is  not  bound  to  pro-  |  testimony  of  experts 

duce  testimony  from  experts. 


4.  The  jury  are  the  final  judges  in  such 
cases.  But  omission  to  produce  testi- 
mony of  experts  will  often  require  expla- 
nation. 

n.  6.    General  rules  of  law  in  regard  to  the 


§  134.  1.  The  conduct  of  a  railway  train  is  not  strictly  matter 
of  science  perhaps.  Its  laws  are  not  so  far  denned,  and  so  ex- 
empt *from  variation,  as  to  be  capable  of  perfect  knowledge,  like 

43  Sedgwick  on  Dam.  38,  98,  454  ;  ante,  §  131,  154.  In  the  case  of  Shaw  v. 
Boston  &  Worcester  Railw.,  ante,  n.  4,  where  the  plaintiff's  husband  was  killed, 
by  the  same  collision,  and  she  was  shown  to  have  had  a  family  of  young  children, 
and  to  be  without  sufficient  property  for  their  support,  it  was  held  to  be  error  in 
the  court  not  to  charge  the  jury,  when  specially  requested  so  to  do,  that  these 
facts  could  not  be  considered  by  them  in  estimating  damages. 

24  Appendix  to  Sedgwick  on  Dam.  609  ;  Varillat  v.  N.  Orleans  &  Car.  Railw., 
10  Louisiana  Ann.   88. 

55  Lunt  v.  London  &  N.  W.  R.  Co.,  12  Jur.  N.  S.  409. 
*397 


§  184.  MISCONDUCT   OF   OPERATIVES   SHOWN   BY   EXPERTS.         553 

those  of  botany  and  geology,  and  other  similar  sciences,  or  even 
those  of  medicine  and  surgery  perhaps,  whose  laws  are  subject  to 
more  variation.1  But  they  are  nevertheless  so  far  matters  of 
skill  and  experience,  and  are  so  little  understood  by  the  com- 
munity generally,  that  the  testimony  of  inexperienced  persons 
in  regard  to  the  conduct  of  a  train,  on  a  particular  occasion,  or 
under  particular  circumstances,  would  be  worthy  of  very  little 
reliance.  They  might  doubtless  testify  in  regard  to  what  they 
saw,  and  what  appeared  to  be  the  conduct  of  the  operatives,  but 
thosp  skilled  in  such  matters  might,  as  experts  in  other  cases  are 
allowed  to  do,  express  an  opinion  in  regard  to  the  conduct  of  the 
train,  as  shown  by  the  other  witnesses,  and  how  far  it  was  ac- 
cording to  the  rules  of  careful  and  prudent  management,  and 
what  more  might,  or  should  have  been  done,  consistently  with 
the  safety  of  the  train,  in  the  particular  emergency.2  But  where 
the  plaintiff,  who  claimed  damages  on  account  of  the  misconduct 
of  a  flagman  at  a  railway  crossing,  had  attempted  to  prove  that 
he  was  a  careless  and  intemperate  person,  it  was  held  that  the 
company  might  show  that  he  was  careful,  attentive  and  temper- 
ate, and  that  these  facts  might  be  proved  by  those  who  had  seen 
his  conduct,  and  need  not  be  shown  by  experts.3 

2.  But  a  railway  company,  when  sued  for  misconduct,  are  not 
bound,  in  the  first  instance,  ordinarily,  to  show,  by  the  testimony 
of  experts,  that  they  were  guilty  of  no  mismanagement.  But  in 
the  case  of  an  injury  to  passengers,  the  rule  is  otherwise.4 

3.  And  it  has  been  said,  that  one  who  brings  an  action  against 
a  railway,  founded   upon   negligence   and   misconduct,  is   not 
bound,  in  opening  his  case,  to  show,  that  by  the  laws  and  prac- 
tice of  railway  companies  there  was  mismanagement  in  the  par- 

1  Quimby  v.  Vermont  Central  Railw.,  23  Vt.  R.  394,  395. 

8  Illinois  Central  Railw.  v.  Reedy,  17  Rlinois  R.  580,  583.  Caton,  J.  "  The 
burden  of  proof  is  on  the  plaintiff',  and  it  is  for  him  to  show,  by  facts  and  circum- 
stances, and  by  those  acquainted  with  the  management  of  trains,  who  could  speak 
understandingly  on  the  subject,  that  it  was  practicable  and  easy  to  have  avoided 
the  collision,  and  that,  in  not  doing  so,  those  in  charge  of  the  train  were  guilty 
of  that  measure  of  carelessness,  or  wilful  misconduct,  which  the  law  requires  to 
establish  the  liability." 

3  Gahagan  v.  Boston  &  Lowell  Railw.,  1  Allen,  187. 
Post,  §  176  ;  Galena  &  Chicago  Railw.  v.  Yarwood,  17  Illinois  R.  509. 


554  LIABILITY   FOR  ACTS   OF   AGENTS   AND  SUB-AGENTS.       §  134 

ticular  case.    If  he  sees  fit  to  trust  that  question  to  the  good  sense 
of  the  jury,  he  may.5 

4.  But  it  is  obvious,  that  in  cases  of  this  kind,  although  the 
jury  are  ultimately  to  determine,  upon  such  light  as  they  can 
obtain,  and  will  be  governed  a  good  deal  by  general  principles 
of  reason,  based  upon  experience,  and  that  the  testimony  of  wit- 
nesses, unskilled  in  the  particular  craft,  will  doubtless  have  a 
considerable  influence  in  establishing  certain  remote  principles, 
by  which  all  men  must  be  governed,  in  extreme  cases,  neverthe- 
less, in  that  numerous  class  of  cases,  in  courts  of  justice,  which 
have  to  be  determined  *  upon  a  nice  estimate  and  balance  of  con- 
flicting testimony,  the  opinion  of  experienced  men,  in  the  par- 
ticular business,  must  be  of  very  controlling  influence.  And  it  is 
very  well  understood,  that  generally,  the  fact  that  such  evidence 
is  not  produced,  unless  the  omission  is  explained,  will  tend  to 
raise  a  presumption  against  the  party.6 

6  Quimby  v.  Vermont  Central  Railw.,  23  Vt.  R.  394,  395. 

8  Murray  v.  Railroad  Company,  10  Rich.  (S.  C.)  227.  As  we  find  few 
cases  in  the  books  bearing  upon  this  general  question,  in  regard  to  railways,  we 
may  refer  to  analogous  subjects  where  the  question  has  arisen.  Nautical  men 
may  testify  their  opinion,  whether,  upon  the  facts  proved  by  the  plaintiff",  the  col- 
lision of  two  ships  could  have  been  avoided,  by  proper  care  on  the  part  of  defend- 
ants' servants.  Fenwick  v.  Bell,  1  C.  &  K.  312.  So,  too,  in  regard  to  the  proper 
stowage  of  a  cargo.  Price  v.  Powell,  3  Comst.  322.  So  a  master,  engineer,  and 
builder  of  steamboats,  may  testify  his  opinion,  upon  the  facts  proved,  as  to  the 
manner  of  a  collision.  The  Clippers.  Logan,  18  Ohio  R.  375  ;  Sills  v.  Brown,  9 
C.  &P.  601. 

It  has  been  held,  that  even  experts  may  not  be  called  to  express  an  opinion, 
whether  there  was  misconduct  in  the  particular  case  on  trial,  as  that  is  the  prov- 
ince of  the  jury,  but  that  they  may  express  their  opinion  upon  a  precisely  simi- 
lar case,  hypothetically  stated,  which  seems  to  be  a  very  nice  distinction,  and 
which  is  combated  in  a  very  sensible  note  to  Fenwick  v.  Bell,  47  Eng.  Com. 
Law  R.  312.  The  opinion  of  Lord  Ellenborough,  in  Beckwith  v.  Sydebotham,  1 
Camp.  11G,  117,  that  where  there  is  a  matter  of  skill  or  science  to  be  decided, 
the  jury  may  be  assisted  by  the  opinion  of  those  peculiarly  acquainted  with  it, 
from  their  professions  and  pursuits,  seems  to  us  more  just  and  wise. 

We  have  always  regarded  the  testimony  of  experts,  as  a  sort  of  education  of 
the  jury  upon  subjects  in  regard  to  which  they  are  not  presumed  to  be  properly 
instructed.  The  distinction  we  make  upon  the  subjects,  where  we  allow  the 
testimony  of  experts,  and  where  we  do  not,  shows  this.  The  nearer  the  testi- 
mony comes  to  the  very  case  in  hand  the  more  pertinent  and  useful.  And  the 
finesse  of  keeping  the  very  case  out  of  sight  by  name,  but  describing  it  by  alle- 
*398 


§  134.  MISCONDUCT   OF   OPERATIVES   SHOWN   BY   EXPERTS.         555 

gory,  in  asking  the  opinion  of  the  experts,  is  scarcely  equalled  by  the  device  of 
certain  species  of  birds,  who  imagine  themselves  invisible  to  others  because  they 
are  so  to  themselves.  It  is  not  unlike  asking  a  witness  in  regard  to  the  genuine- 
ness of  handwriting,  in  dispute  before  a  jury,  and  which  is  to  be  determined  by 
them,  and  this  is  always  allowed  without  question.  And  in  all  such  questions, 
there  is  likely  to  be  so  much  disagreement  among  the  experts,  as  to  leave  the 
jury  a  sufficient  duty  to  perform.  But  the  more  common  practice  is  according 
to  the  rule  in  Sills  v.  Brown. 

In  an  action  against  a  railway  company  for  carrying  their  road  through  plain- 
tiffs pasture,  throwing  down  his  fences,  and  scattering,  frightening,  and  injuring 
his  cattle,  it  was  held  that  an  experienced  grazier  is  competent  to  testify  as  an 
expert  in  regard  to  the  state  of  cattle  and  to  causes  affecting  their  weight  and 
health  on  a  supposed  state  of  facts.  But  that  such  person  could  not  express  an 
opinion  upon  the  facts  proved  in  the  particular  case,  on  the  point  to  be  deter- 
mined by  the  jury.  Baltimore  &  Ohio  Railw.  v.  Thompson,  10  Md.  R.  76. 
y  In  Webb  v.  Manchester  &  Leeds  Railw.,  1  Railw.  C.  576,  a  point  involving 
questions  of  practical  science  being  in  dispute,  and  the  testimony  conflicting,  it 
was  referred  to  an  engineer  for  his  opinion,  and  his  conclusion,  in  regard  to  the 
facts,  adopted  and  made  the  basis  of  the  order  of  court.  In  the  case  of  Seaver 
v.  Boston  &  Maine  Railw.  Co.,  14  Gray,  466,  after  several  experts  called  by  the 
plaintiff  had  testified,  upon  a  statement  of  facts  and  circumstances  of  the  acci- 
dent, what  in  their  opinion  threw  the  cars  from  the  tracks,  the  defendants  were 
permitted  to  ask  a  machinist  who  had  been  connected  for  many  years  with  rail- 
roads, and  with  the  running  of  cars  and  engines  upon  them,  and  who  was  in  the 
cars  at  the  time  of  the  accident,  and  saw  the  occurrence  and  all  the  attending 
circumstances,  what  in  his  opinion  threw  the  cars  from  the  track,  and  it  was 
held  no  ground  of  exception. 

We  had  occasion,  in  our  book  on  Wills,  pt.  1,  §  15,  pp.  135  -  159,  to  examine 
the  subject  of  the  testimony  of  experts  upon  the  question  of  mental  soundness 
in  all  its  bearings.  Many  of  the  principles  there  laid  down,  and  especially  the 
course  of  practice,  will  apply  to  the  general  bearing  of  this  class  of  testimony 
in  other  cases. 


556 


RAILWAY    DIRECTORS. 


§135. 


♦CHAPTER    XXI 


RAILWAY    DIRECTORS. 


SECTION    I. 


Extent  of  the  Authority  of  Railway  Directors. 


1 .  Notice  to  one  director,  if  express,  sufficient. 

2.  Applications  to  the  legislature  for  enlarged 

poivers,  and  sale  of  company 's  ivories,  re- 
quire consent  of  shareholders. 

3.  Constitutional  requisites   must  be  strictly 

followed. 

4.  Directors,  or  shareholders,  cannot  alter  the 

fundamental  business  of  the  company. 

5.  Inherent  diffiadty  of  defining  the  proper 

limits  of  railway  enterprise. 
n.  7.   Opinion  of  Lord  Langdale,  and  review 
of  cases,  on  this  subject. 

6.  An  act  ultra  vires  can  only  be  confirmed 

by  actual  and  not  by  constructive  assent. 

7.  The  directors  of  a  trading  company  may 

give  bills  of  sale  hi  security  for  debts  con- 
tracted by  them. 


8.  Directors  cannot  bind  company  except  in 

conformity  with  charter. 

9.  Company  cannot  retain  money  obtained 

by  fraud  of  directors. 

10.  But  it  must  appear  the  plaintiff  was  mis- 

led without  his  own  fault. 

11.  Company,  by  adoptiny  act  of  directors, 

are  liable  to  make  recompense. 

12.  A  prospectus  and  report  should  contain 

the  whole  truth. 

13.  Directors  cannot  issue  shares  to  procure 

votes  and  control  corporation. 

14.  What  will  amount  to  fraud  in  thereports 

of  the  company. 

15.  Directors  responsible  for  fraudulent  acts 

and  representations. 

1 6.  Extent  of  power  of  directors. 


§  135.  1.  We  have  before  stated,  in  general  terms,  the  power 
of  the  directors  of  the  company  to  bind  them.1  The  board  of 
directors  ordinarily  may  do  any  act,  in  the  general  range  of  its 
business,  which  the  company  can  do,  unless  restrained  by  the 
charter  and  by-laws.2     Notice  to  one  of  a  board  of  directors,  in 

1  Ante,  §  113;  Post,  §  164. 

2  Whitwell,  Bond  &  Co.  v.  Warner,  20  Vt.  R.  425.  But  the  general  agent 
of  such  a  company,  who  performs  the  daily  routine  of  the  business  of  the  compa- 
ny, cannot  bind  them  beyond  the  scope  of  his  ordinary  duties.  Hence  the  law- 
agent  of  a  joint-stock  insurance  company  cannot  bind  the  company  by  his  false 
representations  as  to  the  state  of  its  finances.  Burnes  v.  Pennell,  2  H.  L.  Cas., 
Clark  &  F.  (n.  s.)  497.  But  where  the  directors  of  the  company  make  such 
false  representations  as  to  the  state  of  the  finances  of  the  company  to  enhance 
the  price  of  stocks,  they  are  liable  to  an  action  at  the  suit  of  the  person  de- 
ceived, or  to  criminal  prosecution  ;  and  transfers  of  stock,  made  upon  the  faith 

*399 


§  135.  EXTENT  OF  THEIR  AUTHORITY.  557 

the  same  transaction,  or  express  notice,  is,  in  general,  notice  to 
the  company.     But  the  fact  that  one  of  a  firm  is  a  director  in  a 
banking  company,  but  takes  no  active  part  in  the  business  of  the  ' 
bank,  is  no  notice  *to  such  bank  of  the  dissolution  of  such  part- 
nership, or  the  retiring  of  one  of  its  partners.8 

2.  But  it  is  said  the  directors  of  a  corporation  have  no  author- 
ity, without  a  vote  of  the  shareholders,  to  apply  to  the  legislature 
for  an  enlargement  of  the  corporate  powers.4  And  it  was  held, 
that  the  managing  directors  of  a  joint-stock  company,  who  had 
power  to  lease  the  works  of  the  company,  could  not,  in  the  lease, 
give  an  option  to  the  lessee,  to  purchase,  or  not,  at  a  price  fixed, 
the  entire  works  of  the  company,  at  any  time  within  twenty  years, 
and  that  such  a  contract  must  be  ratified  by  every  member  of 
the  company  to  become  binding  upon  them.5 

8.  And  where  the  deed  of  a  joint-stock  company  enables  the 
majority  to  bind  the  company,  by  a  resolution  passed  in  a  certain 
manner,  these  formalities  must  be  strictly  complied  with,  or  the 
minority  will  not  be  bound  by  the  act.6 

of  such  representations,  will  be  set  aside  in  equity.  Id.  Lord  Campbell  said,  it 
•was  not  necessary  the  representation  should  have  been  made  personally  to  the 
plaintiff.     See,  also,  Soper  v.  Buffalo  &  Roch.  Railw.,  19  Barb.  310. 

But  where  the  charter  of  a  railway  company,  or  the  general  laws  of  the  state, 
require  the  ratification  of  a  particular  contract,  by  a  meeting  of  the  sharehold- 
ers, held  in  a  prescribed  manner,  such  contract,  assumed  by  the  directors  only, 
does  not  bind  the  company,  and  a  court  of  equity  will  not  hesitate  to  enjoin  its 
performance  by  the  company  at  the  suit  of  any  dissenting  shareholder.  Zabris- 
kic  v.  C.  C.  &  C.  Railw.,  10  Am.  Railw.  Times,  No.  15. 

Where  a  tariff  of  fares  of  freight  and  passengers  upon  a  railway  are  estab- 
lished and  pflsted  up  by  the  president  of  the  company,  and  are  acted  upon  in 
transacting  the  business  of  the  company  without  objection,  the  consent  of  the 
corporation  will  be  presumed.     Hilliard  v.  Goold,  34  New  H.  R.  230. 

3  Powles  v.  Page,  3  C.  B.  16.  But  the  secretary  of  a  railway  company  can- 
not bind  the  company  by  admissions.  Bell  $.  London  &  N.  W.  Railw.,  '21  En^. 
L.  &  Eq.  5G6.  Nor  can  the  directors  bind  the  company  by  their  declarations, 
unless  connected  with  their  acts,  as  part  of  the  res  gestce.  Soper  v.  Buffalo  & 
Roch.  Railw.,  19  Barb.  310.  Notice  of  process  to  two  directors  of  a  canal 
company  is  good  notice  to  the  company,  and  will  bind  it,  although  never 
communicated  to  the  board.  Boyd  v.  Chesapeake  &  Ohio  Canal  Co.,  17  Md. 
R.  195. 

4  Marlborough  Manufacturing  Co.  t\  Smith,  2  Conn.  R.  579. 
B  Clay  v.  Rufford,  19  Eng.  L.  &  Eq.  350. 

8  Ex  parte  Johnson,  31  Eng.  L.  &  Eq.  430.     One  railway  company  cannot, 

*400 


558  RAILWAY   DIRECTORS.  §  135. 

4.  So,  too,  where  the  directors,  or  even  a  majority  of  the  share- 
holders, assume  to  enter  into  a  contract,  beyond  the  legitimate 
scope  of  the  objects  and  purpose  of  the  incorporation,  the  con- 
tract is  not  binding  upon  the  company,  and  any  shareholder  may 
restrain  such  parties,  by  injunction  out  of  Chancery,  from  applying 
the  funds  of  the  company  to  such  purpose,  however  beneficial  it 
may  promise  to  become  to  the  interests  of  the  company.  This 
is  a  subject  of  vast  concern  to  the  public,  considering  the  large 
amount  of  capital  invested  in  railways,  and  the  uncontrollable  dis- 
position which  seems  almost  everywhere  to  exist,  in  the  utmost 
good  faith,  no  doubt,  to  improve  the  business  of  such  companies, 
by  extending  the  lines  of  communication,  and  even  by  the'virtual 
purchase  of  other  extensive  works,  more  or  less  nearly  connected, 
either  in  fact,  or  in  apprehension,  with  the  proper  business  of  the 
company.  In  a  late  English  case  (1861),  before  the  Master  of 
the  Rolls,  it  was  held,  that  where  a  railway  company  were  re- 
quired by  their  charter  to  keep  up  a  ferry  accommodation  be- 
tween certain  points,  and  for  that  purpose  were  obliged  to  have 
a  much  larger  number  of  steamboats  on  certain  days  than  upon 
ordinary  occasions,  they  were  not  acting  ultra  vires  in  employing 
the  steamboats  for  excursions  to  a  point  beyond  the  ferry  and 
back,  when  not  required  for  the  purposes  of  the  ferry.7  The 
learned  judge  thus  defined  the  powers  of  railway  companies. 
After  saying  that  if  every  shareholder  but  one  assented,  the  com- 
pany could  not  carry  on  a  trade  perfectly  distinct  from  that  for 

without  the  permission  of  parliament,  purchase  stock  in  other  railway  companies. 
Salomons  v.  Laing,  G  Railway  C.  289. 

In  the  case  of  Ernest  v.  Nichols,  30  Law  Times,  45,  decided  in  the  House 
of  Lords,  in  August,  1857,  the  subject  of  the  power  of  the  directors  of  a  joint- 
stock  company  to  bind  the  company,  is  discussed  very  much  at  length,  and 
the  conclusion  reached,  as  in  some  former  cases  (Ridley  v.  Plymouth,  &c. 
Co.,  2  Exch.  711,  and  some  others),  that  the  directors  could  execute  no  bind- 
ing contract  on  behalf  of  the  company,  except  in  strict  conformity  to  the 
deed  of  settlement  by  which  the  company  was  constituted  :  and  that  it  was  no 
excuse  for  the  other  contracting  party  to  say  he  was  ignorant  of  the  provisions 
of  that  deed.  It  was  his  folly  to  contract  with  a  director  or  directors,  under 
such  ignorance,  and  he  must  be  content  to  look  to  those  with  whom  he  con- 
tracted. 

'  Forrest  v.  Manchester  S.  &  L.  Railw.,  7  Jur.  N.  S.  749  ;  s.  C.  affirmed  in 
Court  of  Chancery  Appeal,  id.  887,  but  upon  the  ground  that  the  suit  was  illu- 
sory, and  not  in  fact  the  suit  of  the  plaintiff,  but  of  a  rival  company. 


§  135.  EXTENT  OF  THEIR  AUTHORITY.  559 

which  they  were  constituted  ;  "  it  is  impossible,"  said  the  Master 
of  the  Rolls,  "  for  them  to  set  up  a  brewery,  —  they  cannot  carry 
on  a  trade  such  as  managing  a  packet  company."  "  And  if  this 
were  the  case  of  a  railway  company  embarking  in  the  formation 
of  a  packet  company,  for  the  purpose  of  carrying  passengers  be- 
tween two  places,  or  even  for  the  mere  purpose  of  making  excur- 
sions, I  should  be  of  opinion  it  was  not  justified.  But  I  am  of 
opinion,  that  no  capital  of  the  company  is  embarked  expressly 
and  solely  for  the  purpose  of  making  excursion  trips." 

And  in  the  Supreme  Court  of  the  United  States8  it  has  been 
decided,  that  the  separate  railway  corporations  had  no  right  to 
consolidate  their  roads  into  one,  and  put  them  under  one  man- 
agement, which  seems  to  us  a  very  questionable  proposition,  to 
say  the  least,  since  such  a  combination  of  management  is  obvi- 
ously the  only  thing  which  will  be  adequate  to  produce  the  kind 
and  degree  of  concentration  of  effort  and  management  in  the 
carrying  forward  of  railway  enterprises  in  this  country,  which 
will  make  them  either  remunerative  or  useful  to  the  public. 
And  as  there  is  no  national  supervision  of  these  vast  interests, 
we  must  find  it  either  in  the  discretion  of  railway  directors  and 
managers,  or  in  some  new  constitutional  provisions  in  the  national 
government,  adequate  to  the  exigency.  But  the  proposition  that 
such  companies  cannot  establish  a  steamboat  line  in  connection 
with  their  business,  and  that  their  joint  notes  given  for  the  pur- 
chase of  boats  cannot  be  enforced,  is  unquestionable.8 

5.  There  can  be  no  doubt  the  courts  of  equity  hold  some  right- 
ful control  over  these  speculative  schemes  and  enterprises.  But 
*  they  lie  so  deeply  entrenched,  in  the  general  spirit  of  the  age, 
and  receive  so  much  countenance  and  sympathy  from  kindred 
enterprises,  in  almost  all  the  departments  of  business,  that  it 
often  becomes  extremely  difficult,  if  not  impossible,  to  fix  any 
well-defined  and  practicable  limits  to  the  operations  of  railway 
companies,  that  shall  not  allow  them,  on  the  one  hand,  the  power 
of  indefinite  extension,  and  overwhelming  absorption  of  kindred 
enterprises,  or  which  will  not  be  regarded,  on  the  other,  as  a  de- 
nial of  fair  liberty  and  free  scope  to  carry  out  the  just  objects  of 

8  Pearce  v.  M.  &  I.  &  P.  &  I.  Railw.,  21  How.  441.  But  see  Rut.  &  Bur- 
Railw.  v.  Proctor,  29  Vt.  R.  93,  95. 

*401 


560  RAILWAY   DIRECTORS.  §  135. 

their  creation.  We  have  thought  that  we  could  not  afford  a 
more  just  and  unexceptionable  commentary  upon  this  difficult 
and  important  subject,  than  in  the  language  of  one  of  the  most 
sober,  discreet,  and  learned  of  the  English  equity  judges,  Lord 
Lang-dale,  M.  R.9 

9  Colman  v.  The  Eastern  Counties  Railw.  Co.,  4  Ilailw.  C.  513.  The  man- 
aging directors  of  a  railway  company,  with  the  view  of  increasing  the  traffic  on 
their  .line,  entered  into  a  contract  with  a  steam-packet  company,  that  they  would 
guarantee  the  proprietors  of  the  steam-packet  company  a  minimum  dividend  of 
£  5  per  cent,  on  their  paid-up  capital  until  the  company  should  be  dissolved,  and 
that,  upon  a  dissolution,  the  whole  paid-up  capital  should  be  returned  to  the 
shareholders  in  exchange  for  a  transfer  of  the  assets  and  properties  of  the  steam- 
packet  company. 

One  of  the  shareholders  filed  a  bill  on  behalf  of  himself  and  all  other  share- 
holders who  should  contribute,  except  the  directors,  against  the  company  and 
the  directors,  and  obtained  an  injunction,  ex  parte,  to  restrain  the  completion  of 
the  contract :  — 

Held,  on  motion  to  dissolve  the  injunction,  that  an  objection  for  want  of  par- 
ties to  a  suit  so  framed  was  not  sustainable.  That  directors  have  no  right  to 
enter  into  or  to  pledge  the  funds  of  the  company  in  support  of  any  project  not 
pointed  out  by  their  act,  although  such  project  may  tend  to  increase  the  traffic- 
upon  the  railway,  and  may  be  assented  to  by  the  majority  of  the  shareholders, 
and  the  object  of  such  project  may  not  be  against  public  policy.  That  acquies- 
cence by  shareholders  in  a  project  for  however  long  a  period,  affords  no  pre- 
sumption that  such  project  is  legal. 

That  an  objection  stated  by  affidavit  and  remaining  unanswered,  that  the 
plaintiff  was  proceeding  at  the  instigation  and  request  of  a  rival  company,  did 
not  deprive  him  of  his  right  to  an  injunction,  and  the  motion  to  dissolve  the  in- 
junction was  refused,  with  costs. 

The  learned  judge  said  :  "  To  look  upon  a  railway  company  in  the  light  of  a 
common  partnership,  and  as  subject  to  no  greater  vigilance  than  common  part- 
nerships may  be,  would,  I  think,  be  greatly  to  mistake  the  functions  which  they 
perform,  and  the  powers  of  interference  which  they  exercise  with  the  public 
and  private  rights  of  all  individuals  in  this  realm.  We  are  to  look  upon  those 
powers  as  given  to  them  in  consideration  of  a  benefit,  which,  notwithstanding 
all  other  sacrifices,  is  on  the  whole  hoped  to  be  obtained  by  the  public  ;  but 
the  public  interest  being  to  protect  the  private  rights  of  all  individuals,  and  to 
save  them  from  liabilities  beyond  those  which  the  powers  given  by  the  several 
acts  necessarily  occasion,  those  private  rights  must  always  be  carefully  looked  to. 

"  I  am  clearly  of  opinion,  that  the  powers  given  by  an  act  of  parliament  like 
that  which  is  now  in  question,  extend  no  further  than  expressly  stated  in  the 
act,  except  where  they  are  necessarily  and  properly  acquired  for  the  purposes 
which  the  act  has  sanctioned.  How  far  those  powers  may  extend  which  are 
necessarily  or  conveniently  to  be  exercised  for  the  purposes  intended  by  the  act, 


§  135.  EXTENT  OF  THEIR  AUTHORITY.  561 

6.  In  a  recent  English  case,10  it  was  declared  by  the  Court  of 
Chancery  that  the  directors  of  the  company  were  restricted,  as  to 

will  very  often  be  a  subject  of  great  difficulty.  We  cannot  always  ascertain 
what  they  are  ;  ample  powers  arc  given  for  the  purpose  of  constructing  the  rail- 
way;  ample  powers  are  given  for  the  purpose  of  maintaining  the  railway  ;  am- 
ple powers  are  also  given  for  the  purpose  of  doing  all  those  tilings  which  are  re- 
quired for  the  proper  use  of  the  railway ;  but  I  apprehend  that  it  has  nowhere 
been  stated  that  railway  companies  have  power  to  enter  into  transactions  of  all 
sorts  and  to  any  extent.  Indeed  it  is  admitted,  and  very  properly  admitted, 
that  they  have  not  a  right  to  enter  into  new  trades  and  new  businesses  not 
pointed  out  by  the  act;  but  it  is  contended  that  they  have  a  right  to  pledge 
the  funds  of  the  company,  without  any  limit,  for  the  encouragement  of  other 
transactions,  however  various  and  extensive,  provided  only  they  profess  that  the 
object  of  the  liability  occasioned  to  their  own  shareholders  by  such  encourage- 
ment is  to  increase  the  traffic  upon  the  railway,  and  thereby  the  profit  to  the 
shareholders.  Surely  that  has  nowhere  been  stated ;  there  is  no  authority  for 
anything  of  that  kind.  What  has  been  stated  is,  that  these  things  to  a  small 
extent  have  frequently  been  done  since  the  establishment  of  railways.  Be  it  so; 
but  unless  what  has  been  done  can  be  proved  to  be  in  conformity  with  the  powers 
given  by  the  special  acts  of  parliament,  they  do  not,  in  my  opinion,  furnish  any 
authority  whatever.  To  suppose  that  the  acquiescence  of  railway  shareholders, 
for  the  last  fifteen  years,  in  any  transaction  conducted  by  a  railway  company,  is 
any  evidence  whatever  of  their  having  a  lawful  right  to  enter  into  it,  is,  I  think, 
wholly  to  forget  the  frenzy  in  which  the  country  has  been  for  the  last  fifteen 
or  sixteen  years,  or  thereabout.  There  is  no  project,  however  wild,  which  has 
not  been  encouraged  by  some  one  or  more  of  these  companies.  There  is  no 
project,  however  wild,  which  the  shareholders,  or  the  persons  liable  in  respect 
of  those  companies,  have  not  acquiesced  in,  from  one  cause  or  another,  either 
from  cupidity  and  the  hope  of  gaining  extraordinary  profits  beyond  their  first 
anticipations,  or  from  terror  of  entering  into  a  contest  with  persons  so  powerful. 
In  the  absence  of  legal  decisions,  I  look  upon  the  acquiescence  of  shareholders 
in  these  transactions  as  affording  no  ground  whatever  for  the  presumption  that 
they  may  be  in  themselves  legal." 

The  case  was  afterwards  mentioned  to  the  court,  on  behalf  of  the  defendants, 
when  his  lordship  stated,  that  the  injunction  was  only  meant  to  refer  to  the 
guaranty  proposed  to  be  given,  and  the  case  made  by  the  bill;  but  was  not  in- 
tended to  affect  any  arrangement  which  the  directors  might  enter  into  with  any 
steam-packet  company  respecting  the  rates  and  tolls  to  be  charged  on  the  rail- 
way. 

In  Salomons  v.  Laing,  the  same  learned  judge  said  (6  Railw.  C.  301)  :  "A 
railway  company,  incorporated  by  act  of  parliament,  is  bound  to  apply  all  the 

10  Stanhope's  case,  12  Jur.  N.  S.  79,  reversing  the  decision  of  the  Master  of 
the  Rolls  in  s.  C.  11  Jur.  N.  S.  872  ;  Lord  Belhaven's  case,  11  Jur.  N.  S.  572,  is 
here  denied,  and  Spackman's  case,  Id.  207,  approved. 

vol.  1.  36 


562  RAILWAY    DIRECTORS.  §  135. 

the  extent  of  their  authority  to  bind  the  members,  by  the  terms 
of  the  deed  of  settlement  or  charter,  or  fundamental  constitution 

moneys  and  property  of  the  company  for  the  purposes  directed  and  provided 
for  by  the  act  of  parliament,  and  not  for  any  other  purpose  whatever.  When 
the  expenses  are  paid,  and  the  public  purposes  directed  and  provided  for  by 
the  act  of  parliament,  —  which,  in  truth,  was  the  motive  and  inducement  for 
granting  the  extraordinary  powers  given  by  all  these  acts  of  parliament, — 
when  these  purposes  are  fully  performed,  any  surplus  which  may  remain  after 
setting  apart  the  sum  to  answer  contingencies,  may,  if  not  applied  in  enlarging, 
improving,  or  repairing  the  works,  be  divided  among  the  shareholders.  The 
dividends,  which  belong  to  the  shareholders,  and  are  divisible  among  them,  may 
be  applied  by  them  severally  as  their  own  property,  but  the  company  itself,  or 
the  directors,  or  any  number  of  the  shareholders  assembled  at  a  meeting  or 
otherwise,  have  no  right  to  dispose  of  the  shares  of  the  general  dividend,  which 
belong  to  the  particular  shareholder,  in  any  manner  contrary  to  the  will,  or 
without  the  consent  or  authority  of  that  particular  shareholder.  Any  applica- 
tion of  or  dealing  with  the  capital,  or  any  part  of  the  capital,  or  any  funds  or 
money  of  the  company,  which  may  come  under  the  control  or  management  of 
the  directors  or  governing  body  of  the  company,  in  any  manner  not  distinctly 
authorized  by  the  act  of  parliament,  is  in  my  opinion  an  illegal  application  or 
dealing;  and  without  meaning  to  say  that  it  is  or  could  be  practicable  for  indi- 
vidual shareholders  to  interfere  on  every  occasion,  however  small,  of  alleged 
misapplication  of  particular  sums,  I  am  of  opinion  that  if,  as  in  this  case,  the 
directors  are  proceeding  upon  an  illegal  principle,  and  for  purposes  not  au- 
thorized by  the  act  of  parliament,  to  involve  the  company,  or  the  shareholders 
of  the  company,  or  any  of  them,  in  liabilities  to  which  the  shareholders,  or  any 
of  the  shareholders,  never  consented,  relief  may  and  ought  to  be  given  in  this 
court ;  and  that  the  mere  circumstance  of  the  Brighton  company  having  ob- 
tained, as  it  is  not  disputed  they  did  lawfully  obtain,  a  certain  number  of  shares 
in  the  Portsmouth  company,  is  not  a  reason  why  the  company  should  be  enabled 
or  permitted  to  purchase  more  shares,  and  thereby  increase  the  risks  to  which 
parliament  permitted  the  shareholders  to  be  exposed  by  the  shares  which  may 
have  become  vested  in  them  by  the  Amalgamation  Act,  or  any  reason  why  the 
directors  should  be  permitted  to  divert  so  much  of  the  funds  of  the  company  as 
they  think  proper,  or  indeed  any  portion  of  those  funds,  for  the  support  of  an- 
other company  having  distinct  objects,  and  meant  to  be  applied  to  purposes 
different  from  those  in  consideration  of  which  alone  those  powers  were  granted 
to  them."  Ante,  §  5G.  Where  the  statute  prohibits  the  directors  of  a  company 
from  being  concerned,  directly  or  indirectly,  in  building  its  road,  a  contract  be- 
tween the  company  and  two  of  its  directors,  for  that  purpose,  is  absolutely  void. 
Barton  v.  Port  Jackson,  &c.  Plank  Road  Co.,  17  Barb.  397. 

The  deed  of  a  joint-stock  banking  company  contained  provisions,  that  the 
directors  should  be  not  fewer  than  five  or  more  than  seven ;  that  three,  or  more, 
should  constitute  a  board,  and  be  competent  to  transact  all  ordinary  business, 
and  that  the  directors  should  have  power  to  compromise  debts.     Agents  might 


§  135.  EXTENT    OF   THEIR    AUTHORITY.  563 

of  the  company  ;  and  that  any  arrangement  ultra  vires  of  the  di- 
rectors, by  which,  in  consideration  of  a  money  payment  by  a 
shareholder  desiring  to  retire,  they  declared  his  shares  forfeited, 
is  not,  nor  can  any  lapse  of  time  render  it,  binding  on  the  gen- 
eral body  of  the  shareholders,  unless  it  is  shown,  not  only  that 
the  latter  might  have  been,  but  also  that  they  actually  were,  fully 
aware  of  the  transaction.  This  seems  to  us  to  be  placing  the 
question  of  ratification  of  an  act  ultra  vires  upon  its  only  safe 
and  salutary  basis.     There  should  always  be  either  express  or 

be  appointed  by  the  directors  to  accept  or  draw  bills,  without  reference  to  the 
directors.  The  number  of  directors  became  reduced  to  four,  and  three  executed 
a  deed,  compromising  a  large  debt  due  the  company,  taking  from  the  debtor  a 
mining  concern,  and  covenanting  to  indemnify  him  against  certain  bills  of  ex- 
change. 

In  an  action  on  this  covenant,  held  that  it  did  not  bind  the  company,  not  be- 
ing ordinary  business,  and  no  number  of  directors  less  than  five  being  competent 
to  transact  it.  And  query,  whether  a  board  of  three  directors  could  transact 
even  ordinary  business,  unless  when  the  board  consisted  of  five  only.  Kirk  v. 
Bell,  12  Eng.  L.  &  Eq.  385. 

But  where  a  series  of  contracts  have  been  openly  made  by  the  officers  of  a 
corporation,  within  the  knowledge  of  the  corporators,  who  have  acquiesced  in 
and  derived  benefit  from  them,  the  contracts  are  binding  upon  the  corporation, 
although  not  expressly  authorized  in  its  charter.  And  if  it  be  a  municipal  cor- 
poration it  is  bound  to  pay  whatever  is  due,  by  taxes,  if  it  has  no  other  means. 
Alleghany  City  v.  McClurkan,  14  Penn.  St.  81. 

So  also  where,  by  consent  of  the  board  of  directors,  a  general  agent  was  em- 
ployed in  making  contracts  for  the  purchase  of  the  right  of  way,  and  were  in 
the  habit  of  agreeing  upon  the  price,  by  submission  to  arbitrators,  and  the 
awards  had  been  paid  in  such  cases  by  the  company's  financial  officers,  under  a 
general  resolution  to  pay  the  amount  these  agents  directed,  it  was  held  that 
such  agent,  and  another  agent  employed  to  assist  in  the  same  service,  had  power 
to  submit  the  question  of  price,  in  such  cases,  to  arbitrators,  and  their  award 
was  binding  upon  the  company.  And  it  is  not  requisite  that  the  contract  of 
submission  should  be  under  the  seal  of  the  company  in  such  case,  nor  will  it  be 
avoided  by  the  agent  attaching  a  seal  to  its  execution,  by  himself.  Wood  v.  The 
Auburn  &  Roch.  Railw.,  4  Seld.  160.  But  the  fact  that  the  directors  have  exe- 
cuted some  ten  or  twelve  similar  contracts,  and  that  such  contracts  had  been 
published  in  the  annual  reports,  and  distributed  to  the  stockholders  without  ob- 
jection, although  evidence  of  acquiescence  on  their  part  is  not  evidence  of  the 
enlargement  of  the  charter  powers  of  the  company,  so  as  to  bind  the  company, 
as  between  them  and  the  primary  parties  entering  into  the  contract  with  them. 
McLean,  J.,  in  Zabriskie  v.  C.  C.  &  C.  Railw.,  10  Am.  Railway  Times,  No.  15. 
Ante,  §  56. 


564  RAILWAY   DIRECTORS.  §  135. 

presumptive  evidence  of  actual  and  unconstrained  acquiescence 
entirely  satisfactory  to  the  court,  in  order  to  bind  a  principal  by 
any  act  of  his  agent,  beyond  the  proper  limits  of  the  authority 
delegated  to  him.  This  is  a  principle  of  universal  acceptance 
and  application  in  the  law  of  agency. 

7.  One  of  the  latest  English  cases  n  declares,  that  the  power 
of  the  directors  to  give  a  bill  of  sale,  as  security  for  debts,  is  inci- 
dent to  all  trading  corporations,  although  it  be  not  expressly 
conferred  by  the  articles  of  association,  or  the  constitution  of  the 
company.  Mr.  Ch.  Justice  Erie  said,  "  The  fact  that  the  com- 
pany carries  on  a  trade  is  a  sufficient  answer  to  the  first  objection. 
Every  trading  company  must  have  the  power  of  giving  security 
for  the  debts  which  it  contracts." 

8.  Where  power  is  given  in  the  charter  of  a  corporation  or  in 
the  deed  of  settlement,  for  the  directors  to  confirm  any  contract 
made  by  provisional  directors,  or  any  persons  acting  as  directors 
of  the  company  in  its  formation,  the  directors  alone  have  power 
to  confirm  such  contracts  by  deed.12  But  the  directors  have  no 
power  to  make  any  contract  under  seal  binding  upon  the  corpo- 
ration, if  the  formalities  prescribed  by  its  constitution  have  not 
been  complied  with.13 

9.  The  directors  being  but  the  servants  or  trustees  of  the 
company,  it  cannot,  as  before  stated,  retain  money  obtained  from 
one  by  the  fraudulent  sale  by  the  directors  of  the  company  prop- 
erty, unless  the  purchaser  has  by  his  own  misconduct  precluded 
himself  from  redress.14  It  was  here  held,  that  directors  are  not 
justified  in  using  reports  to  induce  a  sale  of  property,  which 
were  true  at  the  time  they  were  made,  if  not  true  at  the  time 
they  are  so  used. 

10.  But  the  last  case  was  reversed  in  the  House  of  Lords,  and 
the  decree  of  Vice-Chancellor  Stuart16  affirmed  with  costs,  —  his 

11  Shears  v.  Jacobs,  12  Jur.  N.  S.  785. 

12  Wilkins  v.  Roebuck,  4  Drew.  281. 

13  Hambro  iT  Hull  &  London  Fire  Ins.  Co.,  3  H.  &  N.  789.  See,  also,  East- 
wood v.  Bain,  Id.  738  ;  Bryon  v.  Met.  Saloon  Omnibus  Co.,  3  De  G.  &  J.  123  ; 
Baker  ex  parte,  6  Jur.  N.  S.  240. 

14  Conybeare  v.  New  B.  &  Canada  Railw.  Co.,  6  Jur.  N.  S.  518  ;  ante,  §  41, 
pi.  2. 

15  6  Jur.  N.  S.  164. 


§  135.  EXTENT  OF  THEIR  AUTHORITY.  565 

honor  not  having  awarded  costs,  —  on  the  same  grounds  mainly 
which  the  Vice-Chancellor  had  assumed  :  that  as  no  specific  rep- 
resentations had  been  made  by  the  company,  and  no  specific  in- 
quiry by  the  plaintiff,  his  case  failed  on  that  point ;  and  inasmuch 
as  he  completed  the  purchase  after  being  informed  of  the  facts  as 
to  defect  of  title,  he  could  not  complain  of  any  previous  misrep- 
resentation.16 

11.  But  it  was  declared  in  the  House  of  Lords,16  that  if  reports 
are  made  to  the  stockholders  of  a  company  by  their  directors, 
and  adopted  by  them  at  one  of  their  appointed  meetings,  and  af- 
terwards circulated  in  their  published  reports,  they  are  binding 
upon  the  company.  And  if  erroneous  statements  in  such  reports 
can  be  clearly  shown  to  have  been  the  proximate  and  immediate 
cause  of  shares  having  been  bought  from  the  company  by  any 
individuals,  a  court  of  equity  will  not  permit  the  company  to  re- 
tain the  benefit  of  the  contract. 

12.  But  when  a  company  issues  a  prospectus,  a  person  con- 
tracting to  take  shares  on  the  faith  of  it,  has  the  right  to  claim,  not 
only  that  he  shall  not  be  misled  by  any  statements  actually  false, 
but  that  he  shall  be  correctly  informed  by  it  of  all  the  facts,  the 
knowledge  of  which  might  reasonably  have  deterred  him  from 
entering  into  the  contract.17  But  the  false  representation  of  an 
officer  is  not  that  of  the  company,  even  if  made  at  the  office.18 
But  to  become  the  act  of  the  company  it  must  be  contained  in  a 
report  of  the  company  adopted  at  a  regular  meeting.18 

13.  The  directors  of  a  railway  company  are  not  justified  in 
acting  on  an  old  resolution  authorizing  the  issue  of  shares,  after 
the  purpose  for  which  the  issue  was  authorized  has  ceased  to  be 
available  ; 19  nor  in  issuing  shares,  supposing  them  to  possess  the 
power,  for  the  express  purpose  of  procuring  votes  to  influence  a 

16  8  Jur.  N.  S.  575.  See  here  Lord  Chelmsford's  strictures  upon  the  loose 
mode  of  stating  fraud.  See  Royal  British  Bank  in  re  Mixer's  case,  4  De  G. 
&  J.  575.  See,  also,  Cullen  v.  Thompson,  in  the  House  of  Lords,  where  all  the 
officers  of  a  company  participating  in  a  fraudulent  representation  are  held  liable, 
although  but  part  signed  the  report.     9  Jur.  N.  S.  85. 

17  N.  B.  &  C.  Railw.  &  Land  Co.  v.  Muggeridge,  1  Drew.  &  Sm.  3G3  ;  s.  c.  7 
Jur.N.  S.  132. 

18  Royal  British  Bank  in  re,  3  L.  T.  N.  S.  843. 
M  Fraser  v.  Whalley,  2  H.  &  M.  10. 


566  RAILWAY    DIRECTORS.  §  135. 

coming  general  meeting.19  An  injunction  will  be  issued  to  re- 
strain such  action  of  the  directors,  it  not  being  a  question  of  the 
internal  management  of  the  company,  but  an  attempt  to  prevent 
such  management  being  legitimately  carried  on. 

14.  In  a  trial20  before  Martin,  B.,  where  it  appeared  that  the 
profits  of  the  company  had  been  studiously  misrepresented  by  the 
manner  of  keeping  the  books,  and  a  large  apparent  profit  on 
the  year  preceding  the  report  presented,  by  not  bringing  all  the 
cost  of  material  forward  into  the  account  of  the  year  in  which  it 
was  consumed,  it  was  held  that  any  error  in  the  mere  mode  of 
keeping  the  accounts  would  not  be  evidence  of  fraudulent  repre- 
sentation, but  the  falsification  of  facts  and  figures  was  so,  as 
against  any  of  the  officers  of  the  company  who  were  aware  of  the 
issue  of  the  prospectus,  and  had  aided  or  connived  at  the  mode 
in  which  it  was  made  up. 

15.  It  was  also  held  in  the  last  case,  that  as  the  statute  re- 
quired the  dividend  to  be  declared  by  the  directors,  though  with 
the  sanction  of  the  shareholders,  if  to  tne  knowledge  of  the  direc- 
tors and  officers  of  the  company  such  dividend  so  declared  by 
the  directors  was  paid  otherwise  than  out  of  profits,  they  are  re- 
sponsible for  it,  and  for  the  circulation  of  any  declaration  of  it, 
acted  upon  by  innocent  shareholders. 

16.  Directors  may  ratify  any  contract  made  on  tlieir  behalf 
which  they  have  power  to  make  themselves.21  And  where  the 
constitution  of  the  corporation  gives  to  the  directors,  with  the 
sanction  of  an  extraordinary  meeting  of  the  shareholders,  by  a 
majority  of  two  thirds,  power  to  do  any  act  which  might  be  done 
with  the  consent  of  all  the  shareholders,  the  directors  may  lease 
the  entire  business  of  the  company  in  that  mode.22 

20  Bale  v.  Clelland,  4  F.  &  F.  117  ;  Kisch  v.  Venezuela  Railw.  Co.,  11  Jur. 
!N.  S.  646.  The  question  of  fraud  by  means  of  inducing  a  shareholder  to  buy  his 
shares  upon  a  misapprehension  of  the  true  condition  of  the  company,  is  one  of 
fact,  to  be  judged  of  by  the  jury  upon  a  consideration  of  all  the  facts,  and  is 
mainly  one  of  intent.     Cleveland  Iron  Co.  v.  Stephenson,  2  F.  &  F.  428. 

21  Wilson  v.  West  Hartlepool  Harbor  &  Railway  Co.,  11  Jur.  N.  S.  124. 
"  Featherstonhaugh  v.  Porcelain  Co.,  11  Jur.  N.  S.  994. 


§  136.  WHEN   THEY   BECOME   PERSONALLY   RESPONSIBLE.  567 

•SECTION    II. 
When  Directors  become  Personally  Liable. 


1.  Not  liable  personally,  for  any  lawful  act 
done  as  directors. 


4.  Extent  of  powtrs  affected  often  by  usage 
and  course  of  busiriess. 


2.  But  are  liable  ujxin  express   undertaking  |  5.  But  if  contract  is  beyond  the  power  of 

to  be  personally  holden.  company,  or  not  in  usual  form,  directors 

3.  Are  liable  personally,  if  they  assume  to  go  personally  liable. 

beyond  their  powers.  6.  Statement  of  case  illustrating  last  point. 

§  136.  1.  The  English  statute  enacts,  what  was  the  common 
law  indeed,  that  no  director  should  become  personally  liable  by 
*  reason  of  any  contract  made,  or  any  act  done,  on  behalf  of  the 
company,  within  the  scope  of  the  authority  conferred  by  the 
statutes  *  of  the  legislature  and  the  company,  or,  as  it  is  ex- 
pressed, "  by  reason  of  any  lawful  act  done  by  them."  Corpo- 
rations are  not,  in  general,  responsible  for  the  unlawful  or 
unauthorized  acts  of  their  officers.1  But  the  corporation  may 
be  held  responsible  for  the  publication  of  a  libel,  by  its  agents 
and  servants  in  the  due  course  of  the  business  of  the  company, 
as  where  the  company  were  the  owners,  and  by  their  agents  man- 
aged the  electric  telegraph  along  their  line,  and  sent  a  despatch 
to  the  effect  that  the  plaintiff's  bank  "  had  stopped  payment," 
which  proved  not  to  be  the  fact.  This  despatch  was  sent  for 
their  own  protection,  in  order  to  insure  their  agents  against 
taking  bills  on  such  bank.  But  the  message  went  beyond  what 
was  necessary  for  that  purpose,  and  thus  made  the  company 
responsible  as  for  a  voluntary  publication.  It  would  have  an- 
swered all  purposes  to  have  directed  their  agents  not  to  take  the 
bills  without  assigning  any  reason.2  So,  too,  in  Philadelphia, 
Wilmington  and  Baltimore  Railway  v.  Quigley,3  it  was  decided, 

1  Mitchell  v.  Rockland,  41  Me.  R.  363.  Commissioners  to  accept  subscrip- 
tions for  a  corporation,  who  are  by  the  charter  required  to  give  notice  of  the 
time  and  place  of  opening  the  books,  may  give  such  notice  by  a  majority  of 
their  number.     Penobscot  Railw.  v.  White,  41  Me.  R.  512. 

2  Whitfield  v.  South  Eastern  Railw.,  1  Ellis,  B.  &  Ellis,  115;  s.  c.  4  Jur.  N. 
S.  688. 

3  21  How.  (U.  S.)  202. 

*  402 -404 


568  RAILWAY   DIRECTORS.'  §  136. 

that  a  railway  may  become  liable  for  publishing  and  circulating 
among  its  members  a  statement  of  the  report  of  the  directors, 
and  the  evidence  on  which  it  is  based,  although  the  report  itself, 
when  made  to  the  stockholders  in  good  faith,  and  for  their  infor- 
mation upon  matters  affecting  their  interest,  would  be  regarded 
as  a  privileged  communication. 

2.  But  directors  have  been  held  liable,  in  many  cases,  per- 
sonally, where  the  debt  was  that  of  the  company,  and  where  it 
so  appeared  upon  the  face  of  the  contract.  As  upon  a  promissory 
note,  which  was  expressed,  "jointly  and  severally  we  promise  to 
pay,"  "  value  received  for  and  on  behalf  of  the  Wesleyan  News- 
paper Association.  S.  &  W.,  Directors."4  But  it  is  ordinarily 
a  question  of  *  intention,  whether  the  directors  are  personally 
liable  if  they  act  within  the  powers  conferred  by  the  company.5 

3.  But  where  the  directors  of  a  railway  assume  to  do  an  act 
exceeding  their  power,  as  accepting  bills  of  exchange,  which 

*  Healey  v.  Story,  3  Exch.  3.  Alderson,  B.,  said  the  terms,  jointly  and 
severally,  imported  a  personal  undertaking,  inasmuch  as  they  could  properly 
have  no  application  to  the  company.  But  see  Roberts  v.  Button,  14  Vt.  R.  195, 
and  the  cases  cited,  where  the  subject  is  examined  more  at  length  than  space 
will  here  allow.  Dewers  v.  Pike,  Murphy  &  Hurl.  131.  But  in  the  case  of 
Lindus  i'.  Melrose,  31  Law  Times,  36,  before  the  Court  of  Exchequer  Chamber 
(February,  1858),  it  was  held  that  a  promissory  note  expressed,  "  For  value  re- 
ceived we  jointly  promise  to  pay,"  and  signed  by  three  of  the  directors  of  a  joint- 
stock  company,  and  countersigned  by  the  secretary,  and  expressed  to  have  been 
on  account  of  stock  of  the  company,  did  not  bind  the  signers  personally,  but  im- 
ported, on  its  face,  a  contract  on  behalf  of  the  company. 

6  Tyrrell  v.  Woolley,  1  Man.  &  Gr.  809  ;  Burrell  v.  Jones,  3  B.  &  Aid.  47. 
.  In  a  somewhat  recent  case,  Davidson  v.  Tulloch,  6  Jur.  N.  S.  543,  before  the 
House  of  Lords,  it  was  determined,  that  an  action  may  be  maintained  against  the 
directors  of  a  company  in  respect  of  any  transactions  which  the  body  of  the  share- 
holders could  not  sanction,  but  in  respect  of  any  transaction  which  they  might 
sanction,  although  the  directors  might  not  have  been  justified  in  what  they  were 
doing  there  can  be  no  right  of  action.  And  directors  are  not  liable  for  defect 
of  authority  to  make  a  conveyance  of  property,  the  sale  of  which  they  had 
negotiated,  but  the  actual  sale  being  broken  off  by  an  objection  of  the  vendee's 
solicitor,  that  the  directors  had  not  the  requisite  authority.  Wilson  v.  Miers,  10 
C.  B.  N.  S.  348.  See  also  Nowell  v.  Andover  &  R.  Railw.  Co.,  3  Gif.  112  ;  s.  c. 
7  Jur.  N.  S.  839.  The  company  are  not  liable  to  make  good  any  loss  sustained 
through  the  false  representations  of  their  officers,  although  incidently  benefited 
thereby,  unless  they  entered  into  the  scheme  for  the  purpose  of  such  gain.  Barry 
v.  Croskey,  2  Johns.  &  H.  1. 
*405 


§  136.     WHEN  THEY  BECOME  PERSONALLY  RESPONSIBLE.      569 

does  not  come  within  the  ordinary  business  of  railways,  they 
will  be  personally  liable.6 

4.  But  the  business  of  railways  is  so  much  extended  in  this 
country,  as  borrowers  of  money,  carriers,  and  contractors,  in  vari- 
ous ways,  that  it  is  not  easy  to  determine,  except  from  each  par- 
ticular case,  how  far  the  directors  may  draw  or  indorse  bills,  or, 
indeed,  what  particular  acts  they  may  or  may  not  do. 

In  a  recent  case  the  question  of  the  extent  of  corporate  pow- 
ers is  considerably  discussed,7  and  it  was  held  that  the  exercise 
of  such  powers  must  be  conferred  by  their  charters,  but  that  it  is 
the  duty  of  courts  to  give  the  charters  such  a  construction  as  to 
effect  the  leading  purposes  of  the  grant  where  that  can  be  done 
consistently  with  the  grant ;  and  that  business  corporations  have 
the  power  to  make  such  contracts  and  in  such  forms  as  are  re- 
quisite to  accomplish  the  purposes  of  the  grant,  having  regard 
to  any  special  limitations  contained  in  such  grants,  and  that 
promissory  notes  or  bills  made  or  received  by  such  corporations 
are  prima  facie  valid,  but  that  it  is  competent  to  show  that  the 
transactions  out  of  which  they  arise  are  not  within  the  powers  of 
the  corporation  and  thus  defeat  their  operation.  In  another 
case8  it  was  held,  that primd  facie  a  railway  cqmpany  had  power 
to  execute  promissory  notes  for  its  legal  indebtedness,  and  that 
it  could  do  this  only  by  its  agents  ;  that  no  written  or  sealed 
authority  to  the  agent  was  requisite ;  nor  that  the  contract 
should  be  under  seal  unless  specially  so  required  by  the  charter; 
that  it  was  not  important  to  prove  the  consideration,  as  the  law 
will  make  the  same  implications  in  favor  of  the  note  of  a  corpo- 
ration as  in  other  cases. 

5.  By  the  construction  of  the  English  statutes,  if  a  trustee  or 
director  of  any  public  work  made  a  contract  for  any  matter  not 
provided  for  in  the  special  acts  of  the  company  or  by  the  general 
statutes,  applicable  to  the  subject,  or  in  a  different  form  from 

6  Owen  &  Van  Uster,  10  C.  B.  318  ;  Roberts  v.  Button,  14  Vt.  R.  195. 

7  Straus  v.  Eagle  Insurance  Co.,  5  Ohio  St.  59. 

8  Hamilton  v.  Newcastle  &  Danville  Railw.,  9  Ind.  R.  359 ;  M.  &.  M.  Railw. 
t;.  Hodge,  Id.  1G3.  In  Massachusetts  it  was  held  that  the  only  remedy  under 
the  late  statute  for  a  corporate  debt,  against  an  officer  of  the  corporation,  was  in 
equity.     Bond  v.  Morse,  9  Allen,  471. 


570 


RAILWAY   DIRECTORS. 


§137. 


that  so  provided,  he  is  taken  to  have  intended  to  become  person- 
ally responsible.9 

6.  Thus  where  a  check  on  the  company's  bankers,  for  pay- 
ment to  a  third  party  of  the  company's  money,  was  drawn  by 
three  directors  in  the  name  of  the  company,  but  the  document 
was  signed  by  them  in  their  own  names,  and  countersigned  by 
the  secretary  of  the  company,  adding  to  his  name  "  Secretary," 
and  a  stamp  bearing  the  name  of  the  company  was  affixed,  but 
the  three  directors  did  not  appear,  on  the  face  of  the  check,  to 
be  directors  or  to  sign  as  such,  it  was  held  that  it  did  not  pur- 
port to  be  the  check  of  the  company,  and  was  not  binding  on 
them.10 

*SECTION    III. 
Compe?isation  for  Service  of  Directors. 


1.  In  England,  directors  of  raihcays  are  enti- 

tled to  compensation  for  services. 

2.  But  the  company  may  grant  an  annuity  to 

a  disabled  officer. 

3.  In  this  country  are  entitled  to  compensation, 

in  conformity  to  the  order  of  the  board. 


4.  Some  American  cases  follow  the  English 

rule. 

5.  Official  bonds  strictly  limited  to  term  for 

which  executed. 


§  137.  1.  In  England,  in  the  absence  of  contract  or  usage, 
from  which  one  might  be  inferred,  directors  of  railways  and 
other  corporations  are  not  entitled  to  compensation  for  services 
as  directors.  This  is  regarded  as  an  office,  and  so  an  honorary 
service.  And  a  resolution  of  the  board  of  directors  that  com- 
pensation should  be  allowed  for  certain  specified  services,  not 
being  under  seal,  so  as  to  amount  to  a  by-law,  will  not  entitle 
such  director  to  sue  the  company  for  compensation  for  such 
service.1 

9  Parrott  v.  Eyre,  10  Bing.  283  ;  Wilson  v.  Goodman,  4  Hare,  54,  62  ;  Higgins 
v.  Livingstone,  4  Dow,  P.  C.  341. 

10  Serrell  v.  Derbyshire,  Staffordshire  &  Wor.  J.  Raihv.,  19  Law  J.  371  ;  s.  c. 
9  C.  B.  811.  It  would  seem,  that  without  much  latitude  of  construction  this 
case  might  have  been  otherwise  ruled,  and  been  more  satisfactory. 

1  Dunston  v.  The  Imp.  Gas  L.  Co.,  3  B.  &  Ad.  125.    But  see  Hall  v.  The  Vt. 
&  Mass.  R.,  28  Vt.  R.  401.     The  rule  of  law  in  that  respect  is  different  in  this 
country,  a  resolution  of  the  board  of  directors  having  the  same  force,  whether 
*406 


§  137.  COMPENSATION   FOR   SERVICE   OF   DIRECTORS.  571 

2.  But  it  would  seem,  that  where  the  company  voted  an  an- 
nuity to  a  disabled  officer,  in  the  nature  of  a  retiring  pension, 
and  the  directors,  by  deed,  in  the  name  of  the  company,  made  a 
formal  grant  in  conformity  with  the  vote,  that  the  contract  is 
binding  upon  the  company,  although  no  power  is  expressly 
given  by  their  charter  to  grant  annuities.2 

3.  Railway  directors  in  this  country  are  generally  allowed 
compensation,  but  cannot  recover  it  beyond  the  rate  fixed  by 
the  general  resolutions  of  the  board.3  And  where  a  director 
acts  as  a  member  of  the  executive  committee  of  the  board,  or  in 
selling  the  bonds  of  the  company,  his  service  is  to  be  regarded 
as  in  his  capacity  of  director,  and  the  amount  of  compensation 
is  limited  to  that  allowed  directors.3 

4.  Some  of  the  American  states  adopt  the  English  rule  that 
railway  directors  cannot  recover  compensation  for  services  ren- 
dered in  obtaining  subscriptions  to  the  capital  stock  of  the  com- 
pany, before  its  organization ;  or  for  any  other  services,  unless 
they  are  most  unquestionably  beyond  the  range  of  their  official 
duties.4  And  it  is  here,  determined  that  it  would  make  no  dif- 
ference that  the  services  were  rendered  under  an  expectation 
and  an  understanding  among  those  engaged  in  the  enterprise 
that  the  services  should  be  compensated  by  the  company  after 
its  organization.  And  from  the  technical  embarrassment  of  hold- 
under  seal  or  not.  Post,  §  1G4,  ante,  §  130.  See  also  Gaskell  v.  Chambers,  5  Jur. 
N.  S.  52  ;  s.  C.  26  Beav.  3G0.  In  this  case  the  directors  transferred  the  busi- 
ness of  the  company  to  another  company,  and  received  from  the  latter  a  large  sum 
for  compensation,  and  withheld  the  particulars  from  their  members.  It  was  held 
they  were  trustees  of  the  money  for  the  members,  and  the  directors  were  ordered 
to  pay  it  into  conrt.  But  the  directors  are  not  the  servants  of  the  individual  share- 
holders, and  therefore  such  an  one  who  feels  aggrieved  must  seek  redress  through 
the  company  for  any  misconduct  of  the  directors.  Orr  v.  Glasgow,  A.  &  M.  J. 
R.  Co.,  6  Jur.  N.  S.  877. 

2  Clarke  v.  Imp.  G.  L.  Co.,  4  B.  &  Ad.  315. 

3  Hodges  v.  Rut.  &  Burlington  Railw.,  29  Vt.  R.  But  where  a  director  per- 
forms services  for  the  company,  disconnected  with  his  office,  he  is  not  restricted, 
in  regard  to  compensation,  by  any  resolution  of  the  board,  in  regard  to  the  com- 
pensation to  be  made  the  directors.  Henry  v.  Rut.  &  Bur.  Railw.,  27  Vt.  R. 
485.  In  another  case  it  was  held,  that  railway  directors,  as  a  general  rule,  are 
not  entitled  to  compensation  for  their  personal  services,  unless  rendered  under 
some  express  contract.     Hall  v.  Vermont  &  Mass.  Railw.,  28  Vt.  R.  401. 

*  N.  Y.  &  N.  H.  Railw.  Co.  v.  Ketchum,  27  Conn.  R.  170;  post,  §  140. 


572 


RAILWAY   DIRECTORS. 


§138. 


ing  the  company  bound  by  any  such  arrangements  before  its  ex- 
istence, the  policy  of  the  law  is  wholly  opposed  to  them.4  We 
think  this  by  far  the  most  salutary  rule  upon  the  subject. 

5.  It  is  scarcely  necessary  to  state  that  official  bonds  for  faith- 
ful administration  by  officers  of  corporations  are  to  be  limited 
strictly  to  the  term  for  which  such  officer  is  elected.  And  if 
the  office  is  annual,  and  the  officer  continued  from  year  to  year, 
without  the  renewal  of  the  bond,  and  the  officer's  annual  ac- 
count is  passed  from  year  to  year,  until  finally  a  defect  occur  at 
a  remote  period  from  that  covered  by  the  bond,  there  is  no  in- 
demnity to  be  obtained  under  the  bond.5 


*SECTION    IV. 


Records  of  the  Proceedings  of  Directors. 


1.  English  statutes  require  minutes  of  pro- 
ceedings of  directors  and  make  it  evi- 
dence. 


2.  Presumptions  in  favor  of  their  containing 

all  that  passed. 

3.  Company  ivill  ratify  unauthorized  act  of 

directors  by  acquiescence. 


§  138.  1.  The  English  general  statutes  require  the  directors 
to  keep  minutes  of  all  appointments,  contracts,  orders,  and  pro- 
ceedings of  the  directors  and  committees,  in  books  kept  for  that 
purpose,  and  these,  duly  made,  are  receivable  as  evidence,  with- 
out further  authentication.  But  this  is  held  not  to  exclude 
other  evidence  of  such  transactions.1 

2.  As  against  the  company  and  the  members  present  at  a 
particular  meeting,  the  minutes  of  the  directors  will  be  held 
primd  facie  correct.2  And  where  the  proceedings  of  the  min- 
utes of  the  meeting  are  imperfect,  it  will  be  presumed  that 
everything  was  brought  before  the  meeting  which  it  was  requi- 

5  M.  &  M.  Savings  Co.  v.  O.  F.  Hall  Ass.,  48  Penn.  St.  446. 

1  Inglis  v.  The  Great  Northern  Kailw.,  16  Eng.  L.  &  Eq.  55.  Lord  St. 
Leonards  said,  in  the  House  of  Lords  :  "  But  independently  of  the  evidence  fur- 
nished by  the  books,  the  due  appointment  was  proved  by  a  witness,  and  his 
evidence  was  admissible  evidence,  for  the  act  confers  a  privilege,  but  does  not 
exclude  other  evidence  of  the  fact.     Miles  v.  Bough,  3  Q.  B.  845. 

2  Ex  parte  Stark,  10  Jur.  N.  S.  790. 

*407 


§139. 


AUTHORITY  TO  BORROW  MONEY,  ETC. 


573 


site  to  bring  before  them  to  have  the  action  of  the  company 
valid.3 

3.  The  legality  of  the  proceedings  of  directors  in  purchasing 
shares  of  the  company  for  the  company,  which  required  the 
sanction  of  a  general  meeting,  will  be  presumed  either  from 
lapse  of  time  and  no  dissent  on  the  part  of  the  shareholders,  or 
from  the  proceedings  of  the  general  meeting  at  which  the  mat- 
ter would  naturally  have  been  acted  upon  not  being  forthcom- 
ing, as  it  was  the  duty  of  the  company  to  keep  regular  minutes 
of  such  meeting.3  And  it  was  also  here  held  that  the  company, 
by  transferring  such  shares,  thereby  confirmed  the  validity  of  the 
transfer  to  them.3  So  also  by  paying  an  annuity  the  price 
of  such  shares.3 


SECTION    V. 


Authority  of  Directors  to  borrow  Money,  and  buy  Goods. 


1.  Authority  of  directors   to  bind  company, 

express  or  implied. 

2.  General  agent  will  bind  company  within 

scope  of  his  duties.     Directors  presumed 
to  asse>it  to  his  contracts. 

3.  Contracts  under  seal  of  company  prima 

facie  bind  them. 
A.  Strangers  must  take  notice  of  general  want 


of  authority  in  directors,  but  not  of  mere 
informalities. 

5.  Cannot  subscribe  for  stock  of  other  com- 

panies. 

6.  May  borrow  money  if  requisite. 

7.  How  far  directors  may  bind  company  by 

accepting  land  in  payment  of  subscrip- 
tion. 


§  139.  1.  Joint-stock  companies,  under  many  of  the  English 
statutes,1  are  held  bound  by  contracts  made  by  a  competent 
board  of  directors,  though  not  under  seal,  and  not  made  in 
strict  compliance  with  the  acts.2     But  those  who  seek  to  bind 

3  Ex  parte  Lane,  1  De  G.  J.  &  Sm.  504,  s.  c.  10  Jur.  N.  S.  25. 

1  7  &  8  Vict.  eh.  110. 

2  Ridley  v.  Plymouth  Banking  Co.,  2  Exch.  711.  Where  one  has  the  actual 
charge  and  management  of  the  business  of  a  corporation,  with  the  knowledge  of 
the  directors,  the  company  will  be  bound  by  his  contracts,  made  on  their  behalf, 
within  the  apparent  scope  of  the  business  thus  intrusted  to  him.  Goodwin  v. 
Union  Screw  Co.,  34  N.  H.  R.  378  ;  Chicago,  Burlington,  &  Quincy  Railw.  v. 
Coleman,  1 8  Illinois  R.  297.  In  this  case  it  is  held,  the  admission  of  the  president 
of  the  company  in  regard  to  the  authority  and  acts  of  a  sub-agent  will  bind  the 
company. 


574  RAILWAY   DIRECTORS.  §  139. 

such  companies,  on  contracts  made  with  the  directors,  must 
show  their  authority  to  bind  the  company,  either  by  the  terms 
of  the  deed  of  settlement,  or  that  the  body  of  the  shareholders 
authorized  these  persons  to  act  on  their  behalf.  A  ratification 
by  a  competent  board  of  directors  will  bind  the  company.2 

2.  The  general  rule  upon  this  subject,  in  regard  to  goods  and 
money  which  is  obtained  by  agents,  ostensibly  clothed  with 
*  competent  authority,  and  which  actually  goes  to  the  use  of  the 
company,  seems  to  be  that  the  company  is  holden.  Thus  where 
a  joint-stock  manufacturing  company,  having  a  board  of  direc- 
tors, with  authority  to  appoint  officers  and  delegate  their  au- 
thority, purchased  goods  through  the  general  manager  of  the 
company,  or  his  deputy,  or  the  secretary,  all  of  whom  were  duly 
appointed,  and  when  the  goods  were  delivered  on  the  company's 
premises,  and  used  for  their  purposes,  they  were  held  liable,  on 
the  ground  that  the  manager  had  authority  to  give  such  orders, 
in  the  absence  of  any  express  provision  to  the  contrary.  And  it 
was  held  that,  as  to  the  other,  the  directors  must  be  taken  to 
have  known  that  the  goods  had  been  furnished  and  used,  and 
that,  therefore,  the  company  was  liable  to  pay  for  them.3 

3.  A  contract  under  the  seal  of  the  company  is  primd  facie 
binding  upon  them.  In  such  case  it  is  not  enough,  in  order  to 
defeat  a  recovery  upon  the  contract,  to  show  an  excess  of  au- 
thority on  the  part  of  the  directors,  who  made  the  contract.4     The 

3  Smith  v.  Hull  Glass  Co.,  9  Eng.  L.  &  Eq.  442.  And  where  the  general 
a^ent  of  a  manufacturing  company  directed  the  clerk  to  issue  a  promissory  note 
in  the  name  of  the  company,  and  it  was  shown  that  the  note  was  in  the  form 
customarily  used  by  the  company,  in  other  similar  cases,  and  which  they  had 
always  recognized,  it  was  held  to  be  sufficient  proof  of  the  execution  of  the  note 
by  the  company  to  go  to  the  jury,  and  to  warrant  them  in  finding  that  the  com- 
pany had  adopted,  by  usage,  the  signature  of  their  agent  as  their  own,  and  in- 
tended to  be  bound  by  it.  Mead  v.  Keeler,  24  Barb.  20.  Such  company  may 
borrow  money  for  its  legitimate  business,  and  bind  itself  by  a  written  obligation 
for  its  repayment.  lb.  See  also  Curtis  v.  Leavitt,  15  New  York  Court  of  Ap- 
peals, 9,  where  this  subject  is  discussed. 

4  Royal  British  Bank  v.  Turquand,  32  Eng.  L.  &  Eq.  273.  Lord  Ch.  J. 
Campbell  said,  in  giving  judgment :  "  A  good  plea  must  allege  facts  to  establish 
illegality,  as  was  done  in  Collins  v.  Blantern,  2  Willes,  347,  and  Paxton  v.  Pop- 
ham,  9  East,  408.  A  mere  excess  of  authority  by  the  directors,  we  think  of 
itself  would  not  amount  to  a  defence.  The  bond  being  under  the  seal  of  the 
company,  the  gist  of  the  defence  must  be  illegality.     If  the  directors  had  ex- 

*408 


§  139.         AUTHORITY  TO  BORROW  MONEY,  ETC.  575 

defence  must  establish  such  an  excess  of  authority  as  was 
known  to  the  other  *  party,  or  such  as  may  be  presumed  to  have 
been  so  known,  and  thus  virtually  establish  mala  Jides,  both  on 
the  part  of  the  directors  and  the  other  contracting  party.4 

4.  The  case  of  Royal  British  Bank  v.  Turquand,  just  referred 
to,  was  affirmed  in  the  Exchequer  Chamber,5  in  which  a  some- 
what important  distinction  seems  to  be  made  between  a  general 
want  of  authority  in  the  directors  to  do  the  act  in  question  in 
any  case,  and  a  mere  want  of  authority  in  the  particular  in- 
stance, for  want  of  the  requisite  formalities  on  the  part  of  the 
company,  they  being  bound  in  the  latter  and  not  in  the  former 
case.  Jervis,  Ch.  J.,  in  giving  judgment  said,  "  Parties  dealing 
with  these  joint-stock  companies,  through  the  directors,  are 
bound  to  read  the  deed  or  statute  limiting  the  directors'  author- 
ity, but  they  are  not  bound  to  do  more.  The  plaintiffs,  there- 
fore, assuming  them  to  have  read  this  deed,  would  have  found, 

ceeded  their  authority,  to  the  prejudice  of  the  shareholders,  by  executing  the 
bond,  and  this  had  been  known  to  the  obligees,  illegality,  we  think,  would  have 
been  shown.  The  obligor's  in  executing,  and  the  obligees  in  accepting  the  bond, 
might  be  considered  as  combining  together  to  injure  the  shareholders.  The  two 
parties  would  have  been  in  pari  delicto,  and  the  action  could  not  have  been  main- 
tained. In  such  circumstances  potior  est  condito  defendentis.  But  without  the 
scienter  and  without  prejudice  to  the  shareholders,  or  any  others  whatsoever,  ille- 
gality is  not  established  against  the  obligees.  If  no  illegality  is  shown  as  against 
the  party  with  whom  the  company  contract  under  the  seal  of  the  company,  ex- 
cess of  authority  is  a  matter  only  between  the  directors  and  the  shareholders." 
And  again,  "  The  plaintiffs  have  bond  fide  advanced  their  money  for  the  use  of 
the  company,  giving  credit  to  the  representations  of  the  directors  that  they  had 
authority  to  execute  the  bond,  and  the  money  which  they  advanced,  and  which 
they  now  seek  to  recover,  must  be  taken  to  have  been  applied  in  the  business  of 
the  company,  and  for  the  benefit  of  the  shareholders."  "  The  case  of  Hill  v.  Man- 
chester Waterworks  Co.,  2  B.  &  Ad.  544,  is  an  instance  of  such  a  bond  being  up- 
held, the  pleas  not  disclosing  any  fraud  or  injury  done  to  the  shareholders  of  the 
company,  and  the  case  of  Horton  v.  Westminster  Improvement  Commiss.,  14 
Eng.  L.  &  Eq.  378,  Avas  decided  on  the  same  principle."  Agar  v.  Athenaeum 
Life  Assurance  Co.,  30  Law  Times,  302,  is  decided  on  the  authority  of  R.  British 
Bank  v.  Turquand,  infra,  n.  5.  A  release  purporting  to  be  under  the  corporate 
seal,  and  signed  by  the  president  of  the  company,  and  exhibited  by  them  in 
court,  as  their  act,  would  operate  as  an  estoppel  upon  the  company,  in  any  suit 
between  the  party  as  to  whom  the  release  was  given  and  the  company.  Scaggs 
v.  Baltimore  &  Wash.  Railw.,  10  Md.  R.  268. 
6  36  Eng.  L.  &  Eq.  142. 

*409 


57G  RAILWAY   DIRECTORS.  §  189. 

not  a  prohibition  to  borrow,  but  a  permission  to  borrow,  on  cer- 
tain things  being  done.  They  have,  in  my  opinion,  a  right  to 
infer,  that  the  company  which  put  forward  their  directors  to 
issue  a  bond  of  this  sort,  have  had  such  a  meeting,  and  such  a 
resolution  passed,  as  are  requisite  to  authorize  the  directors  in  so 
doing."  This  rule  has  been  extended  to  negotiable  paper 
drawn  in  the  name  of  the  company  by  the  directors,  beyond  the 
scope  of  their  powers  to  bind  the  company,6  even  while  in  the 
hands  of  a  bond  fide  holder. 

5.  It  was  held  that  a  joint-stock  business  company  had  no 
power  to  take  stock  in  a  savings  bank,  and  that  a  loan  effected 
by  that  means  could  only  be  enforced  to  the  extent  of  the  money 
actually  received  by  the  company  over  and  above  the  amount 
retained  upon  the  subscription.7 

6.  There  seems  to  be  no  question  made  of  the  general  right 
of  corporations,  both  public  and  private,  to  borrow  money,  so  far 
as  their  legal  functions  may  require  it.  The  rule  has  recently 
been  extended  to  insurance  companies.8  But  it  was  once 
doubted  whether  this  could  be  done  except  under  the  corporate 
seal.9     But  the  cases  now  show  that  no  such  thing  is  requisite.10 

7.  It  is  made  a  question  in  a  recent  case11  how  far  the  propo- 
sition by  one  to  subscribe  to  the  stock  of  the  company,  payable 
in  certain  specified  lands  at  a  given  price,  may  be  lawfully  ac- 
cepted by  the  directors  of  the  company,  and  whether  the  same 
should  not  be  made  by  a  special  agent  appointed  for  that  pur- 
pose. But  it  was  held  clearly  that  the  separate  consent  of  sev- 
eral members  of  the  board,  not  shown  to  constitute  a  quorum, 
did  not  create  an  acceptance  binding  upon  the  company. 

6  Post,  §  239,  pi.  5. 

7  Mutual  Savings  Bank  v.  Meriden  Agency  Co.,  24  Conn.  R.  159.  See  also 
post,  §  211,  note  3. 

8  Nelson  v.  Eaton,  26  N.  Y.  R.  410. 

9  Wilmot  v.  Corporation  of  Coventry,  1  Younge  &  Coll.  Exchequer,  518. 

10  Marshall  v.  Queenborough,  1  Simons  &  Stu.  520.  See  cases  before  referred 
to  in  this  section.  And  it  was  held  that  the  directors  of  a  company  incorporated 
for  making  a  cemetery  could  not  raise  money,  by  indorsing  and  accepting  bills, 
for  the  purposes  of  the  undertaking.  Steele  v.  Harmer,  14  M.  &  W.  831.  The 
same  principle  is  recognized  in  the  earlier  cases.  Broughton  r.  Manchester 
Waterworks,  3  B.  &  Aid.  1.  ;  Clarke  v.  Imperial  Gas-Light  Co.,  4  B.  &  Ad.  315. 

11  Junction  R.  Co.  v.  Reeve,  15  Ind.  R.  236. 


§  140.  MUST   SERVE   INTEREST   OF   COMPANY.  577 

♦SECTION    VI. 
Duty  of  Railway  Directors  to  serve  the  Interests  of  Company. 


1 .  General  duty  of  such  office  defined. 

2.  Claim  for  secret  service  and  influence  with 

directors. 

3.  Opinion   of  Justice   Hoffman    upon    the 

legality  of  such  contracts. 
n.  3.  Cases  reviewed  upon  the  subject  of  secret 
services. 

4.  Directors  cannot  buy  of  themselves  for  the 

company.      What   amounts   to   ratifica- 
tion. 


6.  Purchase  of  shares  to  buy  peace. 

7.  Director  may  loan  money  to  company. 

8.  Director  de  facto  sufficient. 

9.  Hotel  company    may   lease  premises   to 

others. 

10.  Director  cannot  recover  for  work  done 

for  company; 

11.  Contract  of  projector  not  binding  on  com- 

pany. 

12.  Director  cannot  act  where  interested. 


5.   The  point  further  illustrated.      Authority  I  13.    Court  will  not  act  on  petition  of  member 
of  directors.  who  is  a  mere  puppet  for  others. 

§  140.  1.  The  general  duty  of  railway  directors  is  stated, 
somewhat  in  detail,  in  another  part  of  this  work.1  It  is  an  im- 
portant and  public  trust,  and  whether  undertaken  for  compen- 
sation or  gratuitously,  imposes  a  duty  of  faithfulness,  diligence, 
and  truthfulness  in  the  discharge  of  its  functions,  in  proportion 
to  its  difficulty  and  responsibility. 

2.  An  important  case,  involving  incidentally  the  duty  of  rail- 
way directors,  arose  recently,  in  the  Superior  Court  of  the  city  of 
New  York.2  The  plaintiff  claimed  pay  for  labor  and  services,  in 
procuring  for  the  defendants  the  contract  for  the  construction  and 
equipment  of  the  Ohio  and  Mississippi  Railway,  from  Cincinnati 
to  St.  Louis.  The  mode  of  his  performing  this  service  seems  to 
have  been  through  one  Clement,  who  knew  nothing  of  defend- 
ants, but  who  acted  upon  the  plaintiff's  recommendation  of  them, 
and,  for  the  agreed  compensation  of -$10,000,  secretly  influenced 
the  directors  of  the  railway,  by  personal  solicitation,  to  give  the 
contract  to  the  defendants. 

3.  Mr.  Justice  Hoffman,  in  giving  judgment,  makes  some  sug- 
gestions, upon  the  general  subject,  well  worthy  of  our  notice. 
"  Undoubtedly  this  was  the  employment  of  Clement,  for  a  bribe, 

1  §  211,  n.  6,  post. 

2  Davidson  v.  Seymour  et  al.  General  Term,  April,  1857,  Law  Reporter,  July, 
1857,  p.  159;  Redmond  v.  Diekerson,  1  Stockton,  Ch.  507. 

VOL.  I.  37  *410 


0< 


RAILWAY   DIRECTORS.  §  140- 


to  use  personal  influence  with  the  directors,  to  secure  a  lucra- 
tive contract  for  one,  of  whose  capacity  and  responsibility  he 
was  entirely  ignorant.  He  was  to  use  this  secretly,  and  with 
individuals. 

"  The  directors  of  this  great  railroad  scheme,  if  they  stood  not 
in  the  capacity  of  public  officers,  owing  a  duty  to  the  state,  yet 
were  trustees  of  the  stockholders  of  the  road,  and  owed  the  best 
efforts  of  industry,  integrity,  and  economy  to  them. 

"  No  one  can  deny,  that  a  stipulation  for  any  personal  advan- 
tage or  profit,  which  might  attend  and  influence  the  discharge 
of  their  *  trust  to  the  stockholders,  would  be  a  violation  of  duty  ; 
and  no  engagement  given  to  them,  or  contracts  made  with  them, 
for  that  object,  could  bear  the  scrutiny  of  the  law. 

"  If,  again,  one  of  their  officers,  if  Mitchell,  for  example,  em- 
powered to  negotiate  and  finally  to  settle  the  contract  with  Sey- 
mour, had  received  an  obligation  for  the  payment  of  a  sum  of 
money  for  his  services,  it  could  never  have  been  enforced."  The 
learned  justice  cited  and  commented  upon  the  following  cases 
in  support  of  the  principle  which  would  avoid  such  agreements ; 3 

3  Gray  v.  Hook,  4  Comst.  449  ;  Waldo  v.  Martin,  4  Barn.  &  Cress.  319  ;  s.  c.  2 
Carr.  &  Payne,  1;  Harrington  v.  du  Chastel,  2  Swanston,  167;  Hopkins  v.  Prescott, 
4  Com.  Ben.  578  ;  Money  v.  Macleod,  2  Simons  &  Stuart,  301  ;  Marshall  v.  Balti- 
more and  Ohio  Railroad  Co.,  16  Howard  (U.  S.),  314,  325;  Fuller  v.  Dame,  18 
Pick.  472. 

Lord  Chancellor  Eldon  says,  in  regard  to  one  acting  as  the  agent  of  others, 
and  who  secured  a  large  sum  to  himself,  without  the  knowledge  of  those  on 
whose  behalf  he  acted,  "  It  is  impossible  for  this  court  to  sanction  such  a  pro- 
ceeding."    Fawcett  v.  Whitehouse,  1  Russ.  &  M.  132. 

Mr.  Shelford,  the  learned  author  of  the  Treatise  on  Railways,  thus  lays  down 
the  rule,  in  regard  to  the  duty  of  the  directors  of  a  railway  company,  pp.  193, 
194.     "  The  employment  of  a  director  is  of  a  mixed  nature,  partaking  of  the 

.nature  of  a  public  office If  some  directors  are  guilty  of  a  gross  non-attend- 

.ance,  and  leave  the  management  entirely  to  others,  they  may  be  guilty,  by  these 
•means,  of  the  breaches  of  trust  which  are  committed  by  others.  By  accepting 
a  trust  of  this  sort,  persons  are  obliged  to  execute  it  with  fidelity  and  reasonable 
diligence,  and  it  is  no  excuse  that  they  had  no  benefit  from  it,  and  that  it  was 

.merely  honorary Supine  and  gross  negligences  of  duty  will  amount  to  a 

breach  of  trust."  Charitable  Corporation  v.  Sutton,  2  Atk.  400.  The  same 
principle,  in  regard  to  the  effect  of  the  service  being  gratuitous,  is  found  in  the 
celebrated  case  of  Coggs  v.  Bernard,  1  Salk.  26.  In  Marshall  v.  Baltimore  and 
Ohio  Railw.,  supra,  Mr.  Justice  Grier  made  some  very  pertinent  remarks,  in 
regard  to  the  duty  of  courts  of  justice,  in  enforcing  against  railway  companies 
*411 


§140.  MUST   SERVE   INTEREST   OF   COMPANY.  579 

and  continued :  "  I  am  led  to  the  conclusion,  that  it  would  be 
impossible  to  allow  Clement  to  sustain  an  action  upon  the  agree- 

contraets  for  obtaining  legislative  grants,  by  extraordinary  efforts  and  influences, 
secretly  exercised.  This  was  an  action  to  recover  $  50,000  for  secret  service,  in 
getting  a  bill  through  the  legislature  of  Virginia,  giving  the  company  the  right 
to  carry  their  road  through  the  state.  The  learned  judge  said  :  "  All  persons 
whose  interests  may  in  any  way  be  affected  by  any  public  or  private  act  of  the 
legislature,  have  an  undoubted  right  to  urge  their  claims  and  arguments,  either 
in  person  or  by  counsel  professing  to  act  for  them,  before  legislative  committees, 
as  well  as  in  courts  of  justice.  But  where  persons  act  as  counsel  or  agents,  or  in 
any  representative  capacity,  it  is  due  to  those  before  whom  they  plead  or  solicit, 
that  they  should  honestly  appear  in  their  true  characters,  so  that  their  arguments 
and  representations,  openly  and  candidly  made,  may  receive  their  just  weight 
and  consideration.  A  hired  advocate  or  agent,  assuming  to  act  in  a  different 
character,  is  practising  deceit  on  the  legislature.  Advice  or  information  flowing 
from  the  unbiased  judgment  of  disinterested  persons,  will  naturally  be  received 
with  more  confidence  and  be  less  scrupulously  examined  than  where  the  recom- 
mendations are  known  to  be  the  result  of  pecuniary  interest,  or  the  arguments 
prompted  and  pressed  by  hope  of  a  large  contingent  reward,  and  the  agent 
'  stimulated  to  active  partisanship  by  the  strong  lure  of  high  profit.'  Any  at- 
tempts to  deceive  persons  intrusted  with  the  high  functions  of  legislation,  by 
secret  combinations,  or  to  create  or  bring  into  operation  undue  influences  of  any 
kind,  have  all  the  injurious  effects  of  a  direct  fraud  on  the  public. 

"  Legislators  should  act  with  a  single  eye  to  the  true  interest  of  the  whole 
people,  and  courts  of  justice  can  give  no  countenance  to  the  use  of  means,  which 
may  subject  them  to  be  misled  by  the  pertinacious  importunity  and  indirect  in- 
fluences of  interested  and  unscrupulous  agents  or  solicitors. 

"Influences  secretly  urged  under  false  and  covert  pretences  must  necessarily 
operate  deleteriously  on  legislative  action,  whether  it  be  employed  to  obtain  the 
passage  of  private  or  public  acts.  Bribes,  in  the  shape  of  high  contingent  com- 
pensation, must  necessarily  lead  to  the  use  of  improper  means  and  the  exercise 
of  undue  influence.  Their  necessary  consequence  is  the  demoralization  of  the 
agent  who  covenants  for  them  ;  he  is  soon  brought  to  believe  that  any  means 
which  will  produce  so  beneficial  a  result  to  himself  are  '  proper  means,'  and  that 
a  share  of  these  profits  may  have  the  same  effect  of  quickening  the  perceptions 
and  warming  the  zeal  of  influential  or  '  careless  '  members  in  favor  of  his  bill. 
The  use  of  such  means  and  such  agents  will  have  the  effect  to  subject  the  state 
governments  to  the  combined  capital  of  wealthy  corporations,  and  produce  uni- 
versal corruption,  commencing  with  the  representative  and  ending  with  the 
elector.  Speculators  in  legislation,  public  and  private,  a  compact  corps  of 
venal  solicitors,  vending  their  secret  influences,  will  infest  the  capital  of  the 
Union,  and  of  every  state,  till  corruption  shall  become  the  normal  condition  of 
the  body  politic,  and  it  will  be  said  of  us  as  of  Rome,  —  '  omne  Romce  venale.' " 

The  following  cases  take  a  similar  view.  Wood  v.  McCann,  6  Dana,  366  ; 
Hunt  v.  Test,  8  Alab.  R.  713  ;  Harris  v.  Roof,  10  Barb.  489  ;  Rose  v.  Truax,  21 

*412 


580  RAILWAY   DIRECTORS.  §  140. 

ment  with  him.     *  There  was  in  it  most  of  the  elements  of  a 
vicious  contract,  which  have  avoided  similar  obligations  in  the 

Barb.  361.  The  enormity  of  such  transactions,  in  some  quarters,  if*  universal 
and  concurrent  general  opinion  may  be  regarded  as  authentic,  is  truly  appalling 
to  any  just  sentiment  of  confidence  in  official  fairness,  and  responsible  relation 
to  public  trusts.  It  is  probable  that  the  virus  of  the  disease  lies  deeper  in  the 
fountains  of  the  common  moral  sentiment  than  we  have  generally  supposed. 
We  feel  no  disposition  to  join  in  a  general  outcry  upon  the  subject.  For  we  do 
not  believe,  as  a  general  thing,  that  such  evils  are  likely  to  be  cured  by  any 
formal  criticisms,  either  in  the  abstract  or  in  particular  cases,  whether  it  come 
from  the  bench  or  the  press.  The  difficulty  is  one  which,  for  its  cure,  demands 
sterner  remedies.  The  perpetrators  of  such  enormities  are  quite  too  apt  to  con- 
sider, that  because  they  have  been  made  the  victims  of  some  severe  strictures, 
in  high  places  perhaps,  they  have  expiated  their  guilt,  and  perhaps  earned  an 
indulgence  for  the  future ;  and  so  rush  at  once  into  a  deeper  chasm  of  iniquity, 
just  as  soon  as  another  tempting  occasion  presents.  And  it  is  not  uncommon, 
that  the  administrators  of  the  law,  even  in  such  cases,  after  having  administered 
a  somewhat  scathing  rebuke  to  the  perpetrators  of  such  crimes,  begin  to  feel 
compunctious  visitings,  and  terminate  the  drama,  which  was  introduced  with 
such  a  high-sounding  announcement,  by  the  infliction  of  a  most  insignificant 
penalty,  which  renders  both  the  law  and  its  ministers  more  or  less  objects  of 
contempt. 

The  true  method  undoubtedly,  in  such  cases,  if  we  desire  to  make  the  law, 
as  it  should  be,  a  just  and  unaffected  terror  to  evil-doers,  is  to  say  little,  but  do 
justice.  Let  the  judgments  of  the  courts,  rather  than  the  comments  of  the 
judges,  testify  to  the  sense  of  abhorrence  of  such  crimes.  These  philippics  from 
the  bench  generally  are  very  justly  regarded,  not  only  by  the  people  at  large, 
but  by  the  culprits  themselves,  as  a  kind  of  apology  for  the  sentence,  and  thus 
destroy  half  its  good  effect.  And  if  the  other  half  is  deducted  by  the  judge,  on 
account  of  the  plainness  and  the  honesty  of  the  rebuke  which  he  has  already 
administered  to  the  offender,  very  little  remains. 

But  the  exposition  of  the  subject,  in  an  important  case  in  the  City  of  New 
York,  is  so  instructive,  that  we  venture  to  repeat  it  here.  In  re  Robert  W. 
Lowber  v.  The  Mayor,  Aldermen,  and  Commonalty  of  the  City  of  New  York  ; 
and  In  re  A.  C.  Flagg,  Comptroller,  and  others,  tax-payers,  v.  Lowber.  The 
wist  of  these  cross-actions  is,  that  by  collusion  with  certain  of  the  city  authorities, 
Lowber  was  to  receive  $  200,000  for  a  piece  of  land  for  a  market  on  the  East 
River.  The  arrangement  was  made  by  consenting  to  a  judgment  of  court  on 
the  report  of  a  referee.  Comptroller  Flagg,  upon  hearing  of  this  judgment,  took 
measures  for  obtaining  a  stay  of  proceedings.  In  giving  judgment  on  this  mo- 
tion, Roosevelt,  J.,  said  :  — 

"  The  decision  of  the  general  term  of  the  superior  court,  it  may  be  said,  was 

not  pronounced,  and  of  course  was  not  known  till  some  months  after  the  title  in 

this  case  was  passed,  and  even  some  weeks  after  the  judgment  in  the  present 

action  was  entered.     But  the  fact,  while  it  affords  matter  of  vindication  to  the 

*413 


§  140.  MUST   SERVE   INTEREST    OF   COMPANY.  581 

leading  cases  cited.  There  *  was  secrecy,  individual  application, 
a  concealed  promise  of  compensation,  and  utter  ignorance  and 

corporation  counsel,  is  at  the  same  time,  of  itself,  a  sufficient  reason,  under  the 
circumstances,  for  opening  the  judgment,  —  a  reason,  as  it  seems  to  me,  not  only 
sufficient,  but  controlling,  leaving  in  any  just  view  of  the  subject  no  alterna- 
tive. To  say  that  the  citizens,  in  such  a  case,  are  to  hazard  more  than  a  half 
million  of  dollars,  the  probable  cost  of  land  and  market,  and  that  there  is  no 
relief,  would  be  monstrous.  The  proposition  shocks  all  our  notions  of  law  and 
judicial  proceedings,  and  especially  when  broached  in  a  court  having,  by  the 
constitution,  general  jurisdiction  in  law  and  equity." 

"  '  As  matter  of  law,'  (says  the  counsel  of  the  city  in  his  second  point),  '  I 
deny  that  the  corporation  can  be  ordered  by  this,  or  any  court,  to  defend  a 
suit.'  The  counsel  seems  to  forget  that  if  the  corporation  (by  which  he  means 
the  aldermen  and  other  officers  of  the  corporation)  cannot  be  ordered  to  defend 
a  suit,  the  corporators  may  be  permitted  to  do  it  for  them  ;  and  that  if  the  court 
cannot  compel  the  corporation  to  resist  an  unjust  claim,  it  can  refuse  to  permit 
its  records  to  be  used  as  the  machinery  for  enforcing  it. 

"  If  this  were  not  so,  of  what  avail  would  be  the  legislative  restrictions  on  the 
power  of  contracting  debts  and  on  the  power  of  exercising  extensive  functions  ? 
All  the  property  of  the  city,  and  all  its  revenues,  past,  present,  and  prospective, 
from  taxation  or  otherwise,  might  be  disposed  of  without  appeal,  by  a  single  act 
of  mortgage  or  conveyance,  clothed  in  the  form  of  a  concerted  judgment  —  a 
judgment,  at  the  most,  nominally  defended,  but  really  confessed  —  and  of  which, 
as  in  this  case,  the  court  itself,  without  its  knowledge,  might  be  made  to  figure 
as  the  innocent  author. 

"  As  matter  of  law,  I  deny  that  the  court  can  be  made,  and  thus  in  effect 
'  ordered,'  by  the  boards  of  direction,  by  whatever  name  called,  of  this  or  any 
corporation,  thus  to  lend  its  aid  to  violate  the  law  and  ruin  the  corporators. 
Nor  is  it  true  either,  that  the  corporation  counsel,  in  the  defence  of  suits  in  this 
court,  brought  against  the  city,  is  subject  to  the  absolute  orders  of  the  two 
boards,  and  '  only  responsible '  to  them.  Although,  in  the  loose  language  of 
ordinary  discourse,  the  aldermen  and  assistant  aldermen  are  commonly  called 
'  the  corporation,'  they  are  in  fact  only  its  legislative,  as  distinguished  from  its 
executive,  organs.  The  corporation  of  the  city,  as  we  have  seen,  consists  of  the 
whole  body  of  the  citizens.  The  citizens  are  the  quasi  stockholders.  The  '  charter 
officers,'  whether  legislative  or  executive,  including  the  '  head  of  the  law  depart- 
ment,' are  merely  the  agents  and  trustees  of  the  citizens,  and  all  ultimately  re- 
sponsible to  them.  It  is  an  error  on  the  part  of  the  corporation  counsel  to  as- 
sume, as  he  does  in  his  third  point,  that  he  is  '  responsible  only  to  his  client,' 
and  that  the  client  is  the  common  council,  as  distinguished  from  the  '  com- 
monalty.' His  office  is  the  direct  gift  of  the  people,  made  elective  for  the 
express  purpose  of  putting  an  end  to  the  subserviency  previously  supposed  to 
exist,  and  of  creating  a  check  or  counterpoise  in  its  stead.  Nor  is  this'all ;  the 
corporation  counsel,  when  conducting  the  prosecution  or  defence  of  a  suit  in 
court,  is  an  officer  of  the  court,  and  as  such,  and  like  any  other  attorney  in  like 

*414 


582  RAILWAY   DIRECTORS.  §  140. 

recklessness  as  to  the  competency  of  the  party  whose  cause  he 
was  promoting,  and  whose  reward  he  was  to  receive.  There  is 
the  difference,  that  these  directors  were  servants  of  an  organi- 
zation inferior  to  that  of  a  state,  yet  acting  in  a  very  spacious 
sphere,  and  representing  an  extensive  body  of  constituents.  The 
difference  between  their  *  position  and  that  of  legislators,  upon  a 
question  like  this,  appears  to  me  but  shadowy. 

"  If,  then,  the  claim  of  Clement  would  be  promptly  rejected, 
does  the  present  plaintiff  stand  in  a  better  position  ?  His  orig- 
inal employment  might  have  been  consistent  with  an  open, 
avowed  agency,  an  intent  or  instructions  to  make  it  known,  and 
thus  be  free  from  all  objections.  But  we  are  left  in  ignorance 
of  what  the  terms  of  such  original  agreement  were,  —  how  far  they 
extended.  All  is  indefinite,  except  merely  an  employment.  He 
engages  Clement,  and  here  again,  that  employment  may  have 
been  perfectly  free  from  censure  on  the  plaintiff's  part.  But 
upon  the  best  consideration  we  can  give,  we  cannot  separate  the 
act  of  Clement  from  the  acts  of  the  plaintiff.  There  is  a  legal 
identity  far  the  purposes  of  this  action.  The  plaintiff  must  be 
held  to  have  employed  Clement  to  do  what  he  did  do,  or  to  have 
been  bound  to  superintend  his  proceedings,  and  free  them  from 
what  was  illegal.  It  is  impossible  to  permit  him  to  profit  by  the 
misdeeds  of  his  own  agents,  however  ignorant  and  exempt  from 

case,  responsible  to  the  court.  Although  subject,  within  certain  limits,  to  the 
legally  authorized  resolutions  of  the  common  council,  when  acting  in  his  general 
character  of  '  counsel  to  the  corporation,'  when  acting  as  an  attorney  of  the 
court  he  is  subject  to  the  rules  and  regulations  of  the  court,  and  with  this  in- 
timation will,  I  have  no  doubt,  be  '  perfectly  prepared  [see  his  communication] 
to  perform  any  duty  which  such  a  result,  or  the  office  he  holds,  may  devolve 
upon  him.' 

"  An  order  will,  therefore,  be  entered  (first  submitting  a  draft  to  the  court  for 
settlement),  directing  that  the  judgment  and  execution  be  set  aside,  as  also  the 
answer,  reference,  and  report  ;  and  that  a  new  answer,  to  be  prepared  by  the 
counsel  to  the  corporation,  and  approved  by  the  comptroller,  be  filed  and  served 
in  twenty  days  from  the  date  of  this  order,  unless  the  comptroller,  within  the 
said  twenty  days,  should  elect,  as  he  may,  officially,  and  as  a  tax-payer  and  cor- 
porator, on  behalf  of  himself  and  others,  to  file  an  original  bill  of  complaint,  set- 
ting forth  such  matters  and  making  such  parties,  and  praying  such  relief  in  the 
premises  as  he  may  be  advised." 

See  also  Semmes  v.  Mayor,  &c.  of  Columbus,  19  Ga.  R.  471.     Ante,  §  176. 
*415 


§  140.  MUST   SERVE   INTEREST    OF    COMPANY.  583 

them   himself.     His   ignorance,  when   knowledge  was  a    duty, 
becomes  equivalent  to  a  fault." 

4.  The  directors  of  a  corporation,  created  for  business  purposes 
and  profit,  are  trustees  for  the  shareholders,  and  owe  them  all  the 
duties  and  responsibilities  which  attach  to  other  trustees  and 
agents.  If,  therefore,  a  director  enter  into  a  contract  for  the 
company,  he  can  derive  no  personal  benefit  from  it.4  Accord- 
ingly, where  the  company  had  furnished  the  director  with  a 
large  sum  of  money,  to  enable  hiih  to  purchase  the  concession 
of  another  company  in  regard  to  their  line,  and  he  purchased  it, 
as  it  turned  out,  of  himself,  being  the  concealed  owner  of  it,  it 
was  held  that  the  transaction  could  not  stand,  but  the  company 
must  adopt  or  repudiate  it  altogether.  But  the  company  having 
sold  the  concession  during  the  pendency  of  a  suit  impeaching  the 
transaction,  it  was  held  they  could  have  no  relief,  either  as  to 
the  application  of  the  money  or  otherwise.5 

5.  And  where  the  directors  of  an  insurance  company  had  pur- 
chased the  stock  of  one  of  the  board,  and  allowed  him  to  retire 
from  his  position  both  as  director  and  shareholder,  and  had  used 
the  funds  of  the  company  to  compensate  him  for  his  shares,  it 
was  held  that  this  was  such  an  irregularity  as  could  not  be  con- 
firmed and  legalized  by  a  meeting  of  the  shareholders  even,  un- 
less the  deed  of  settlement  under  which  the  company  was  formed 
provided  for  its  being  so  ratified,  or  for  its  transaction  by  the  di- 
rectors.6 And  it  was  held,  that  in  such  case  a  bill  in  equity, 
filed  by  certain  shareholders  on  behalf  of  themselves  and  the 
others  against  the  company  and  the  directors,  praying  that  the 
directors  might  be  decreed  to  restore  to  the  company  the  funds 
so  diverted  by  them,  was  maintainable.6 

6.  It  seems  to  be  regarded  as  a  valid  contract  between  the 
different  directors  of  a  corporation,  by  which  one  portion  pur- 
chase the  interest  of  another  portion,  to  enable  them  to  retire 
with  a  view  to  heal  dissensions  in  the  board ;  and  the  fact  that 
the  money  is  paid  by  the  company's  bankers  and  refunded  by  a 

4  Great  Luxembourg  Raihv.  v.  Maguay,  25  Beavan,  586  ;  s.  c.  .4  Jur.  N.  S. 
839. 

4  See  also  Sturges  v.  Knapp,  31  Vt.  R.  1. 

5  Hodgkinson  v.  National  Live  Stock  Ins.  Co.,  5  Jur.  N.  S.  478,  969  ;  s.  c. 
26  Beav.  473. 


584  RAILWAY  DIRECTORS.  §  140. 

resale  of  the  shares  thus  purchased,  will  not  render  the  contract 
invalid.7 

7.  But  where  by  a  constitutional  provision  of  a  corporation  the 
director's  office  was  vacated,  if  he  participated  in  the  profits  of 
any  contract  with  the  company,  but  the  company  were  empow- 
ered to  borrow  money  on  the  director's  own  individual  responsi- 
bility, or  on  other  securities,  it  was  held  that  a  director,  lend- 
ing his  own  money  to  the  company  at  a  large  interest,  was  not 
thereby  disqualified  from  being  a  director.8 

8.  A  director  who  acts  as  such  by  sitting  at  the  board  and 
executing  works  for  the  company,  will  be  treated  as  such  so  far 
as  his  claim  against  the  company  is  concerned,  although  he  was 
not  properly  appointed.9 

9.  It  is  not  ultra  vires  for  a  hotel  company  to  lease  part  of  their 
premises  to  a  business  company,  with  the  condition  that  the  first 
company  shall  have  the  exclusive  privilege  of  supplying  the  por- 
tion so  leased  with  all  provisions,  wines  and  liquors.10 

10.  Under  the  English  statute11  it  is  an  answer  to  a  claim  for 
compensation  for  works  of  the  company  executed  by  the  plaintiff, 
that  he  was  at  the  time  of  entering  into  the  contract  interested 
therein,  and  it  makes  no  difference  that  the  consideration  was 
executed,  and  the  company  had  had  the  benefit  of  the  contract.12 

11.  A  contract  made  between  the  projector  of  a  corporation 
and  the  directors  of  the  company  thereafter  created,  which  is  not 
in  terms  made  conditional  on  the  completion  of  the  company,  is 
not  under  the  English  statute  binding  upon  the  company  when 
fully  established.13 

12.  A  rule  of  the  constitution  of  the  company,  whereby  a  di- 
rector is  prohibited  from  voting  upon  any  matter  in  which  he  is 
interested,  will  not  preclude  him  from  voting  as  a  shareholder  at 

7  Haddon  v.  Ayers,  5  Jur.  N.  S.  408. 

8  Bluck  v.  Mullalue,  5  Jur.  N.  S.  1018;  s.  c.  27  Beav.  398. 

8  South  Essex  Gas  Light  &  Coke  Co.,  in  re  20  L.  J.  Ch.  43. 

10  Simpson  v.  Westminster  Palace  Hotel  Co.,  6  Jur.  N.  S.  985 ;  s.  c.  2  De 
G.  F.  &  J.  141  ;  s.  c.  8  Ho.  Lds.  Cas.  712. 

11  7  &  8  Vic.  c.  110,  §  29. 

12  Stears  v.  South  Essex  Gas  Light  &  Coke  Co.,  9  C.  B.  N.  S.  180;  s.  c.  7 
Jur.  N.  S.  447.     See  also  Walker  ex  parte,  8  De  G.  M.  &  G.  607. 

13  Gunn  v.  London  &  Lancashire  Ass.  Co.,  12  C  B.  N.  S.  694. 


§141. 


EMPLOYEES   DISMISSED. 


RULE   OF   DAMAGES. 


585 


a  general  meeting.14  But  the  resolution  of  a  board  of  directors, 
of  which  the  creditor  is  a  member,  acknowledging  the  existence 
of  a  debt  barred  by  the  statute  of  limitations,  will  not  operate 
to  remove  such  bar,  if  indeed  any  resolution  of  the  board  will  bind 
the  company  to  that  extent.15  • 

13.  Although  it  is  the  unquestionable  right  of  every  member 
of  the  company  to  restrain  the  unlawful  acts  of  the  directors,  still 
when  it  appears  that  the  plaintiff  is  a  mere  puppet  in  the  hands 
of  others  not  members  of  the  company,  who  indemnify  him 
against  the  costs  of  the  suit,  the  court  will  not  interfere  by  inter- 
locutory injunction,10 

SECTION    VII. 

Right  to  dismiss  Employees. — Rule  of  Damages,  when  done 

wrongfully. 


1.  Some  cases  hold,  that  if  wrongfully  dis- 

missed may  recover  salary. 

2.  English   courts   do   not  favor   this   view. 

Case  stated  by  English  judges. 

3.  The  American  cases  have  sometimes  taken 

the  sa7ne  view. 


4.  Where  the  contract  provides  for  a  term  of 

wages,  after  dismissal,  it  is  to  be  regarded 
as  liquidated  damages. 

5.  Statute  remedy,  in  favor  of  laborers  of 

contractors,  extends  to  laborers  of  sub- 
contractors. 


§  141.  1.  Where  a  railway  company  dismiss  a  servant,  super- 
intendent, or  other  employee,  without  just  cause,  it  seems  to  be 
considered,  in  some  cases,  that  they  are  primd  facie  liable  for  the 
salary,  for  the  full  term  of  the  employment.1  This  proposition 
has  been  often  made  by  judges,  and  seems  to  have  been  acqui- 
esced in,  by  the  profession,  to  a  very  great  extent,  but  in  a  late 
English  case,2  *  where  the  subject  is  examined  with  great  thor- 

14  Lead  Mining  Co.  v.  Merry  weather,  10  Jur.  N.  S.  1231  ;  s.  c.  2  H.  &  M.  254. 

15  Gold  Mining  Co.,  ex  parte,  10  L.  T.  N.  S.  229. 

15  Filder  v.  L.  Brighton  &  South  Coast  Railw.  Co.,  1  H.  &  M.  489. 

1  Costigan  v.  The  Mohawk  &  Hudson  Railw.,  2  Denio,  609. 

!  Goodman  v.  Pocock,  15  Q.  B.  576.  This  is  the  case  where  a  clerk,  dismissed 
in  the  middle  of  the  quarter,  brought  an  action  for  the  wrongful  dismissal,  on  the 
special  contract,  and,  in  the  trial  of  the  action,  the  jury  were  instructed  that  they 
should  not,  in  assessing  damages,  take  into  account  the  services  rendered  by 
plaintiff  in  the  broken  quarter,  for  which  he  had  received  no  pay.  The  plaintiff 
then  brought  this  action  for  those  services,  and  here  the  court  held,  that  those 

*416 


586  RAILWAY   DIRECTORS.  §  1-41. 

ouglmcss,  the  opinion  of  the  judges  certainly  seems  to  incline  to 
a  different  result.     Patteson,  J.,  said  :  — 

2.  "  I  am  not  aware  that  this  precise  point  has  been  raised  in 
any  case."  ....  "  Mr.  Smith,  2  L.  Cases,  20  says,  '  that  a  clerk, 
servant,  or  *agent,  wrongfully  dismissed,  has  his  election  of  three 
remedies.  1.  He  may  bring  a  special  action  for  his  master's 
breach  of  contract,  in  dismissing  him.  2.  He  may  wait  till  the 
termination  of  the  period  for  which  he  was  hired,  and  may  then 
perhaps  sue  for  his  whole  wages,  in  indebitatus  assumpsit,  relying 
on  the  doctrine  of  constructive  service.  Gandell  v.  Pontigny,  4 
Ca,mp.  375.  3.  He  may  treat  the  contract  as  rescinded,  and 
may  immediately  sue  upon  a  quantum  meruit,  for  the  work  he 
actually  performed.  Planche  v.  Colburn,  8  Bing.  14.'  I  think 
Mr.  Smith  has  very  properly  expressed  himself  with  hesitation, 
as  to  the  second  of  the  above  propositions  ;  it  seems  to  me  a 
doubtful  point." 

Lord  Campbell,  Ch.  J.,  and  Coleridge,  J.,  both  agree  that  the 
party,  dismissed  without  cause,  may  bring  indebitatus  assumpsit, 
for  the  service  actually  performed,  or  may  sue  for  the  breach  of 
the  contract  in  dismissing  plaintiff,  but  cannot  do  both. 

And  Erie,  J.,  lays  down  the  rule  very  distinctly,  and,  as  it 
seems  to  us,  upon  the  only  sound  and  sensible  basis.  "  The 
plaintiff  had  the  option,  either  to  treat  the  contract  as  rescinded, 
and  to  sue  for  his  actual  service,  or  to  sue  on  the  contract  for  the 

wrongful  dismissal As  to  the  other  option,  referred  to  by 

Mr.  Smith,  I  think  that  the  servant  cannot  wait  till  the  expira- 
tion of  the  period  for  which  he  was  hired,  and  then  sue  for  his 
whole  wages,  on  the  ground  of  a  constructive  service,  after  dis- 
missal. I  think  the  true  measure  of  damages  is  the  loss  sus- 
tained at  the  time  of  dismissal.  The  servant  after  dismissal 
may  and  ought  to  make  the  best  of  his  time,  and  he  may  have 
an  opportunity  of  turning  it  to  advantage.  I  should  not  say  any- 
thing that  might  seem  to  doubt  Mr.  Smith's  very  learned  note, 
if  my  opinion  on  this  point  were  not  fortified  by  the  authority  of 
the  Court  of  Exchequer  Chamber,  in  Elderton  v.  Emmens,  6 
Com.  B.  160." 

services  should  have  been  taken  into  account  in  assessing  damages  in  the  former 
action,  and  that  no  recovery  could  be  had  in  this  action,  on  account  of  the  former 
recovery. 


§  141.  EMPLOYEES   DISMISSED.  —  RULE   OF   DAMAGES.  587 

*  3.  The  cases3  in  this  country  have  sometimes  taken  a  simi- 
lar view  of  the  rule  of  damages,  in  such  cases,  and  the  rule  must, 
we  think,  ultimately  prevail  everywhere.4 

4.  Where  the  contract  specifies  the  time  for  which  the  party 
employed  shall  be  entitled  to  wages  after  notice  of  dismissal,  that 
is  to  be  regarded  as  stipulated  damages  for  the  breach  of  the 
contract.5  But  even  this  cannot  be  recovered  under  the  indebi- 
tatus count,  for  work  and  labor.6 

5.  Where  the  statute  provides,  that  the  laborers  of  contractors 
upon  a  railway  may  give  notice  to  the  company  of  their  wages 
remaining  unpaid,  in  certain  contingencies,  and  thus  charge  the 
company,  the  provision  was  held  to  extend  to  laborers  and  work- 
men of  sub-contractors.7 

*  Algeo  v.  Algeo,  10  Serg.  &  Rawle,  235  ;  Donaldson  v.  Fuller,  3  Id.  505  ; 
Perkins  v.  Hart,  11  Wheaton,  237. 

4  Spear  &  Carlton  v.  Newell,  Sup.  Ct.  Vt.,  not  reported.  In  this  case  the 
plaintiff  sued  for  the  price  of  rags  and  other  materials  furnished,  to  supply  a 
paper-mill  of  defendant,  under  special  contract.  The  materials  were,  at  one 
time,  unfit  for  use,  on  account  of  latent  defects,  for  which  by  the  contract  the 
plaintiffs  were  liable.  The  defendant  claimed  the  rule  of  damages  should  be  the 
rent  of  the  mill  and  the  expense  of  supplying  workmen  until  good  materials  were 
furnished.  But  the  court  held,  that  it  was  the  duty  of  the  defendant  to  make  the 
best  of  the  case,  on  his  part,  and  that  he  could  only  recover  such  damages  as 
intervened,  before  he  had  opportunity  to  supply  himself  with  proper  materials 
for  use. 

6  Hartley  v.  Harman,  11  Ad.  &  Ellis,  798. 

6  Fewings  v.  Tisdal,  1  Exch.  295. 

7  Kent  v.  New  York  Central  Railw.,  2  Kernan,  628.  Peters  v.  St.  Louis  & 
Iron  Mountain  Railw.,  24  Mo.  R.  58G.  Where  the  statute  in  such  case  makes 
the  company  liable  for  thirty  days'  labor  of  the  workmen,  it  is  not  indispensable 
that  the  labor  should  have  been  performed  in  thirty  consecutive  days,  to  entitle 
them  to  compensation  against  the  company.  Such  claims  may  be  sued  in  the 
name  of  an  assignee,  under  the  new  code  of  Missouri.     lb.     Post,  §  232,  n.  5. 

*417 


588 


ARRANGEMENTS    BETWEEN   COMPANIES. 


§142. 


♦CHAPTER    XXII. 


ARRANGEMENTS    BETWEEN    DIFFERENT    COMPANIES. 


SECTION    I 


Leases,  and  similar  Contracts,  require  the  Assent  of  Legislature. 


1 .  By  English  statutes  one  company  may  pass 

over  road  of  another,  but  contract  binding. 

2.  But  cannot  transfer  duty  of  one  company 

to  another,  without  legislative  grant. 

3.  Original  company  liable  to  public,  after 

such  lease.     But  lessee  not  excused. 

4.  Courts  of  eqxdty  enjoin  companies  from 

leasing,  without  legislative  consent. 

5.  But   such   contracts,  made   by   legislative 

grants,  are  to  be  carried  into  effect. 

6.  Majority  of  company  may  obtain  enlarged 

powers,  with  new  funds. 

7.  So  the  majority  may  defend  against  pro- 

ceedings in  legislature. 

8.  Legislative  sanction  will  not  render  valid 

contracts  ultra  vires. 


9.  Railway  company  cannot  assume  duties 
of  ferry,  without  legislative  grant. 

10.  The  grant  to  a  railway  of  the  implied 

right  to  establish  a  ferry  over  a  public 
river  directly  beyond  the  terminus  of  its 
road,  does  not  extend  the  fesponsibility 
of  the  company  to  the  ferry. 

11.  Such  a  ferry  may  become  an  encroachment 

upon  another  by  carrying  passengers 
gratuitously. 

12.  The  grant  to  a  railway  of  a  ferry  in  ex- 

press terms  will  not  authorize  them  to 
carry  anything  except  passengers  and 
freight  passing  over  their  line. 


§  142.  1.  The  English  statute1  gives  special  permission  to 
one  company  to  contract  with  other  companies  for  the  right  of 
passage  over  their  track.  And  this  has  been  construed,  to  give 
the  right  to  contract  for  the  privileges  ordinarily  attaching  to 
such  passage,  of  stopping  at  the  stations,  and  taking  up  and 
putting  down  passengers  and  freight.2  The  parties  will  be 
bound  by  the  terms  of  the  contract,  notwithstanding  the  ninety- 
second  section  of  the  act,  which  gives  all  companies  and  persons 
the  right  to  use  railways  upon  the  payment  of  the  tolls  demand- 
able.3 


1  8  and  9  Vict.  ch.  20,  §  87. 

2  Simpson  v.  Denison,  16  Jurist,  828  ;    2  Shel.,  Ben.  ed.  694;    13  Eng.  L.  & 
Eq.  359. 

3  Great  Northern  Kailw.  v.  Eastern  Co.  Railw.,  9  Hare,  306  ;    2  Shel.,  Ben. 
ed.  696  ;  12  Eng.  L.  &.  Eq.  224. 

*418 


§  142.    LEASES,  ETC,  REQUIRE  CONSENT  OF  LEGISLATURE.     589 

2.  But  an  agreement  between  railway  companies,  without  the 
authority  of  the  legislature,  transferring  the  powers  of  one  com- 
pany to  the  other,  is  against  good  policy,  and  a  court  of  equity 
*  will  not  lend  its  aid  to  carry  such  contract  into  effect.4  But  it 
has  been  held,  that  a  contract,  by  which  one  railway  gives 
another  the  right  of  passage,  upon  the  guaranty  of  a  certain 
per  cent  profit  upon  their  stock  and  all  other  investments,  is  a 
payment  of  tolls  within  the  statute.5  It  seems  to  be  considered, 
by  the  English  courts,  that  one  railway  leasing  its  entire  use 
to  another  company  does  not  come  within  this  section  of  the 
general  statute,  and  as  the  public  thereby  lose  the  security  of 
the  first  company,  for  care  and  diligence,  in  the  discharge  of  its 
public  duties,  the  contract,  unless  made  in  pursuance  of  an 
act  of  the  legislature,  or  ratified  by  such  act,  is  illegal,  as  against 
public  policy.6  At  all  events  a  court  of  equity  may  properly  de- 
cline to  lend  its  aid  in  enforcing  a  specific  performance  of  such 
contract.7 

4  Same  case,  12  Eng.  L.  &  Eq.  244  ;  South  Yorkshire  Railw.  v.  Great  N. 
Raihv.,  19  Eng.  L.  &  Eq.  513  ;  Johnson  v.  Shrewsbury  &  B.  Railw.,  Id.  584  ; 
Lond.  B.  &  South  Coast  R.  v.  L.  &  S.  W.  R.  &  Portsm.  R.,  5  Jur.  N.  S.  801. 
Where  the  subject  is  extensively  examined  by  the  Lord  Chancellor,  and  the 
cases  commented  upon. 

In  a  recent  case  before  the  Superior  Court  of  Cincinnati,  Ohio  &  Miss. 
Railw.  v.  Ind.  &  Cin.  Railw.,  the  question  of  the  right  of  a  railway,  chartered 
by  one  state  to  contract  with  the  railways  of  other  states  for  permanent 
privileges  in  running  cars  upon  such  railways,  is  extensively  considered  and 
denied  by  Storer,  J.  The  case  illustrates  very  forcibly  the  demand  which  obvi- 
ously exists  for  making  all  lines  of  railway  extending  into  different  states  na- 
tional agencies  rather  than  mere  state  institutions.  For  military  and  postal 
purposes  railways  are  far  more  national  than  banks,  and  as  means  of  intercom- 
munication equally  so. 

5  The  South  Yorkshire  R.  &  R.  D.  v.  Great  Northern  Railw.,  22  Eng.  L.  &  Eq. 
531  ;  s.  c.  in  Exchequer  Ch.  25  Eng.  L.  &  Eq.  482.  One  company  having  made 
a  beneficial  contract  with  another  company  in  regard  to  traffic,  may,  with  a  lease 
of  itself,  transfer  the  benefit  of  this  contract.  London  &  S.  W.  Railw.  v.  South 
E.  Railw.,  20  Eng.  L.  &  Eq.  41  7. 

6  Johnson  v.  The  Shrewsbury  &  Birmingham  Railw.,  19  Eng.  L.  &  Eq.  584  ; 
Troy  &  Rut.  Railw.  v.  Kerr,  17  Barb.  581.  This  doctrine  is  reaffirmed  in  the 
House  of  Lords  in  Shrewsbury  &  B.  Railw.  v.  L.  &  N.  W.  R.,  in  May,  1857, 
29  Law  Times,  186. 

7  South  Yorkshire  &  River  Dun  Co.  v.  Great  N.  Railw.,  19  Eng.  L.  &  Eq.  513 ; 
Johnson  v.  Shrewsbury  &  Birmingham  R.,  19  Eng.  L.  &  Eq.  584 ;    Shrewsbury 

*419 


590  ARRANGEMENTS  BETWEEN  COMPANIES.         §  142. 

3.  But  even  where  such  contracts  have  been  made,  by  permis- 
sion of  the  legislature,  it  has  been  held,  in  this  country,  that  the 
company  leasing  itself  does  not  thereby  escape  all  responsibility 
to  the  public.  But  that  the  public  generally  may  still  look  to 
the  original  company,  as  to  all  its  obligations  and  duties,  which 
grow  out  of  its  relations  to  the  public,  and  are  created  by  charter 
and  the  general  laws  of  the  state,  and  are  independent  of  con- 
tract or  privity  between  the  party  injured  and  the  railway.8 

But  there  seems  no  good  reason  to  excuse  the  company,  assum- 
ing to  act  as  common  carriers,  by  virtue  of  the  lease  of  another 
company's  road,  from  the   ordinary  responsibility  of  common 

&  Birm.  Railw.  v.  London  &  N.  "W.  &  Shropshire  Union  Railw.,  21  Eng.  L.  & 
Eq.  319  ;  s.  c.  1  Eng.  L.  &  Eq.  122. 

But  see  cases  ante,  n.  5  ;  post,  §  185. 

8  Nelson  v.  The  Vermont  &  Canada  Railw.,  26  Vt.  R.  717.  But  it  is,  perhaps, 
worthy  of  consideration,  in  regard  to  this  case,  that  the  effect  of  legislative  con- 
sent to  the  lease  is  not  made  a  point  or  decided  in  this  case.  Sawyer  v.  The  Rut. 
&  Burl.  Railw.,  27  Vt.  R.  370.  And  in  Parker  v.  Rensselaer  &  Saratoga  Railw., 
16  Barb.  315,  where  the.  defendants  were  running  upon  the  Saratoga  &  Sche. 
Railw.  by  virtue  of  a  contract,  and  the  plaintiff's  cow  was  killed  through  defect 
of  cattle-guards,  which  it  was  the  duty  of  the  Saratoga  &  Sche.  Railw.  to  main- 
tain, it  was  held  the  defendants  were  not  liable,  the  neglect  being  attributable 
to  the  Saratoga  &  Sche.  company.  Perhaps  the  only  question  in  regard  to  the 
soundness  of  this  decision  is,  whether  both  companies  are  not  chargeable  with 
negligence,  the  one  for  suffering  the  road  to  be  used,  and  the  other  for  using  it 
in  that  condition.  This  is  the  view  taken  of  the  law  in  Clement  v.  Canfield, 
28  Vt.  R.  302 ;  ante,  §  169.     Ohio  &  Miss.  Railw.  v.  Dunbar,  20  111.  R.  623. 

But  in  the  York  &  Maryland  Line  Railw.  v.  Winans,  1 7  How.  30,  it  is  decided, 
that  where  a  railway  is  chartered  by  one  state,  and  all  its  stock  owned  and  the 
road  operated  by  a  corporation  erected  and  existing  in  another  state,  the  first 
corporation  is  nevertheless  liable  to  the  patentee  of  an  improvement  in  railway 
cars  for  the  use  of  his  patent,  cars  of  that  construction  having  been  procured 
and  used  upon  the  road  by  the  corporation  owning  the  stock  of  such  company. 
Campbell,  J.,  said,  "  The  corporation  cannot  absolve  itself  from  the  performance 
of  its  obligations,  without  the  consent  of  the  legislature." 

But  one  company  giving  permission  to  another  to  use  a  part  of  their  track,  do 
not  thereby  become  bound  to  keep  the  track  in  such  repair  as  to  be  safe  for  use. 
Nor  do  such  company  thereby  assume  any  obligation  towards  the  passengers 
carried  thereon  by  such  other  company.  Murch  v.  Concord  Railw.,  9  Foster,  9  ; 
post,  §  183.  See  also  Briggs  v.  Ferrell,  12  Ired.  1.  And  in  Vermont  Central 
Railw.  v.  Baxter,  22  Vt.  R.  365,  the  company  are  held  liable  for  the  acts  of  the 
cont-ator  in  the  exercise  of  the  right  of  eminent  domain,  in  obtaining  materials 
for  constructing  the  road. 


§  142.         LEASES,   ETC.,   REQUIRE   CONSENT   OF   LEGISLATURE.  591 

carriers  for  the  transportation  across  the  portion  of  the  route  held 
by  lease,  on  the  ground  of  the  responsibility  of  the  company 
owning  and  leasing  the  road,  even  when  the  loss  occurred  from 
the  default  of  the  latter  company  in  not  performing  the  stipula- 
tions in  their  lease.9  Nor  can  the  lessees  of  a  railway  excuse 
themselves  from  responsibility  in  such  cases  on  the  ground  that 
their  lease  is  void,  being  taken  without  the  sanction  of  the  legis- 
lature.9 

And  a  railway  company  is  always  responsible  for  an  injury  oc- 
casioned by  want  of  proper  care  and  prudence  on  the  part  of  its 
servants,  in  the  management  of  a  train  which  is  under  their  ex- 
clusive care,  management  and  control,  although  belonging  to 
another  company.10  But  if  such  injury  is  occasioned  by  the 
negligence  of  another  company,  whose  car,  for  the  purpose  of 
being  loaded  by  the  plaintiff,  has  been  placed  upon  a  side  track 
of  defendant's  which  is  in  constant  use  by  other  roads,  that  other 
company  is  bound  to  use  reasonable  care  to  prevent  a  collision, 
and  if  it  fails  to  do  so,  whereby  the  plaintiff  receives  an  injury, 
he  cannot  recover  of  the  company  whose  cars  caused  the  collis- 
ion.10 And  if  such  injury  results  from  the  negligence  of  another 
company,  which  has  a  joint  right  with  the  defendants  to  use  de- 
fendant's track,  under  a  lease,  and  which  is  running  trains  over 
defendant's  road  on  its  own  account,  the  defendants  are  not 
responsible.10 

There  can  be  no  question  of  the  liability  of  the  company  leas- 
ing another  line  of  railway,  whether  within  or  beyond  the  limits 
of  the  state  where  the  first  company  exists,  for  all  acts  and  omis- 
sions whereby  injury  accrues  to  other  parties,  while  so  operating 
such  other  line,  as  lessees,  to  the  same  extent  and  in  the  same 
manner  precisely  as  if  such  injury  had  occurred  upon  the  line 
of  the  first  company.  And  it  seems  to  be  the  inclination  of  the 
American  courts  to  hold  this  in  regard  even  to  those  companies 
who  have  assumed  to  operate  the  roads  of  other  companies, 
whether  temporarily  or  permanently,  and  whether  by  express 
legislative  sanction  or  not.11  This  subject  is  very  extensively 
discussed  in  the  case  last  referred  to,  and  the  views  presented, 

9  McCluer  v.  Manchester  &  Lawrence  Railw.,  13  Gray,  124. 

10  Fletcher  v.  Boston  &  Maine  Railw.,  1  Allen,  9. 

11  Bissell  v.  Mich.  So.  &  N.  Ind.  Railw.,  22  N.  Y.  Court  of  Appeals,  258. 


592  ARRANGEMENTS  BETWEEN  COMPANIES.         §  142. 

although  differing  somewhat  from  those  hitherto  adopted  by  the 
English  courts,  certainly  have  very  much  to  commend  them  to 
favorable  consideration.  But  the  original  company  will  be  re- 
sponsible even  for  the  safe  delivery  of  goods  carried  over  the  line, 
where  it  is  leased  to  a  corporation  out  of  the  state.12 

*  4.  The  English  courts  have  in  some  instances  evon  restrained 
railway  companies  from  carrying  contracts  of  leasing  into  effect, 
without  the  authority  of  the  legislature.13 

5.  But  such  contracts  being  legal,  and  not  inconsistent  with 
the  policy  of  the  acts  of  parliament,  are  to  have  a  reasonable 
construction  ;  and  where,  by  the  creation  of  new  companies  and 
other  facilities,  the  business  is  very  largely  increased,  the  parties 
are  still  to  abide  by  the  fair  construction  of  the  original  contract, 
as  applicable  to  the  altered  circumstances.14 

6.  There  is  no  doubt  of  the  right  of  a  railway  company  in 
England  to  apply  to  the  legislature  for  enlarged  powers,  even  for 
the  power  to  become  amalgamated  with  other  companies,  so  as 
to  make  one  consolidated  company.  And  contracts  between  the 
different  companies,  for  this  purpose,  have  been  there  recognized, 
and  enforced,  in  courts  of  equity.15  And  while  the  courts  of 
equity  will  *  enjoin  the  companies  from  applying  their  funds  to 
pay  the  expenses  of  such  parliamentary  proceedings,  they  will 
not  enjoin  them  from  obtaining  additional  powers,  by  legislative 
acts,  when  other  parties  volunteer  to  furnish  the  requisite  funds.16 
And  there  seems  to  be  no  question  made,  in  the  English  courts, 
of  the  power  of  parliament  to  extend  the  line  of  a  railway,  or  to 
consolidate  existing  companies,  and  that  the  shareholders  are 
bound,  by  the  acceptance  of  such  legislative  provisions,  by  a 
majority  of  the  company,  or  by  contracts  to  procure  such  powers 
by  act  of  parliament.17 

12  Langley  v.  Boston  &  Maine  Railw.,  10  Gray,  103. 

13  Winch  v.  Birkenhead,  L.  &  C.  Railw.,  13  Eng.  L.  &  Eq.  506  ;  Beman  v. 
Rufford,  1  Simons  (x.  8.)  550;  s.  c.  6  Eng.  L.  &  Eq.  106. 

14  East  Lancashire  Railw.  v.  The  L.  &  Yorkshire  Railw.,  25  Eng.  L.  &  Eq.  465. 

15  Mozley  v.  Alston,  1  Phillips,  790,  where  Lord  Cottenham  said  :  "  There  is 
scarce  a  railway  in  the  kingdom  that  does  not  come  to  parliament  for  extension 
of  powers." 

16  Stevens  v.  South  Devon  Railw.,  2  Eng.  L.  &  Eq.  138  ;  Great  Western  Railw. 
v.  Rushout,  10  Eng.  L.  &  Eq.  72;  post,  §  252. 

17  Great  Western  Railw.  v.  Birm.  &  Oxford  Junction  Railw.,  5  Railw.  C.  241. 

*420,  421 


§  142.    LEASES,  ETC.,  REQUIRE  CONSENT  OF  LEGISLATURE.     593 

7.  And  it  has  accordingly  been  held,  that  a  public  company, 
as  the  commissioners  of  sewers  for  a  county,  might  impose  a  rate 
to  defray  the  expense  of  opposing  a  bill,  in  parliament,  which 
threatened  to  affect  the  interests  of  the  company  unfavorably, 
the  same  as  they  might  to  defray  the  expense  of  litigation  in 
court.18  Lord  *  Campbell  said  :  "  Our  determination  rests  upon 
the  ground  that  this  opposition  was  clearly  bond  fide ,  and  clearly 
prudent." 

8.  In  a  very  recent  case,  in  Vice-Chancellor  Wood's  court,19 

The  Lord  Chancellor  says,  that  to  nullify,  in  a  court  of  equity,  all  contracts  made 
upon  the  faith  of  obtaining  the  consent  of  the  legislature  to  carry  them  into  effect, 
would  be  "  to  nullify  many  family  agreements,  and  all  contracts  by  persons  pro- 
jecting new  companies."  Shrewsbury  &  Birm.  Railw.  v.  London  &  N.  W.  Itailw., 
9  Eng.  L.  &  Eq.  394. 

And  it  has  been  held,  in  an  important  case  in  the  Circuit  Court  of  the  United 
States,  Columbus,  Piqua.  &  Ind.  Railw.  v.  Indianapolis  &  Bellefontaine  Railw., 
5  McLean,  450,  that  an  agreement  between  two  railway  companies  to  build  their 
roads  from  certain  cities,  to  meet  at  a  given  place,  and  that  the  charges  for  trans- 
portation shall  be  regulated  by  both  companies,  and  also  the  meeting  of  the  cars, 
and  the  through  freight  cars,  is  a  valid  contract,  and  will  be  enforced  by  injunc- 
tion in  equity.  That  to  fix  the  charge  for  the  transportation  of  passengers  and 
freight,  is  the  exercise  of  the  corporate  franchise  of  each  company,  and  an  agree- 
ment that  both  companies  shall  regulate  this  is  no  abandonment  or  transfer  of 
the  franchise  of  either. 

18  Reg.  v.  Commissioners  of  Norfolk,  15  Q.  B.  549.  The  ground  upon  which 
the  decisions  in  England  and  America,  which  hold  the  franchises  of  corporations 
not  to  be  assignable  except  by  consent  of  the  legislature,  rest,  is  mainly  the  same 
as  that  upon  which  it  has  been  held  in  this  country,  that  such  franchises  are  be- 
yond legislative  control,  namely,  that  the  charter  constitutes  a  contract  between 
the  sovereignty  and  the  corporation,  on  the  one  part,  for  the  grant  of  certain 
privileges  and  immunities,  and  upon  the  other  for  the  performance  of  certain 
duties  and  functions,  which  are  deemed  an  equivalent  or  consideration.  And 
this  feature  is  of  peculiar  force  in  the  case  of  that  class  of  corporations  upon 
which  the  legislature  have  conferred  important  public  duties  and  functions,  as 
railways  and  banks,  and  some  others.  The  state  confers  upon  a  railway  some 
of  its  most  essential  powers  of  sovereignty,  that  of  eminent  domain,  and  of  a 
virtual  monopoly  in  transportation  of  freight  and  passengers,  and  in  return 
therefor  stipulates  for  the  faithful  performance  of  these  duties  by  the  corporation. 
The  corporation  have  no  more  right,  in  equity  and  justice,  to  transfer  their  obli- 
gations to  other  companies,  or  to  natural  persons,  than  the  state  have  to  with- 
draw them  altogether.  Either  would  be  regarded  as  an  abuse  of  the  powers 
conferred,  or  an  impairing  of  the  just  obligation  of  the  contract  resulting  from 
the  grant,  and  its  acceptance. 

19.  Leominster  Canal  Co.  v.  Shrewsbury  &  Hereford  Railw.,  29  Law  Time? 

VOL.  I.  38  *422 


594  ARRANGEMENTS  BETWEEN  COMPANIES.        §  142. 

the  defendants  entered  into  an  agreement  to  purchase  plain- 
tiffs' property,  there  being  at  the  time  no  legislative  permis- 
sion either  to  buy  or  sell  such  property.  Subsequently  such 
permission  was  obtained,  and  steps  taken  by  the  defendants, 
under  the  act,  to  carry  the  contract  into  effect,  but  they  ulti- 
mately refused  to  complete  their  purchase,  on  the  ground  that 
the  original  agreement  was  not  under  the  seal  of  the  corpora- 
tion, nor  signed  by  two  of  their  directors.  The  plaintiffs  then 
filed  a  bill  for  specific  performance,  and  it  was  held,  that  the  bill 
mus"t  be  dismissed,  on  the  ground  that  the  contract  was  origi- 
nally ultra  vires,  not  being  made  dependent  upon  obtaining  the 
consent  of  the  legislature.  It  is  also  said,  that  the  contract 
would  not  be  binding  upon  the  company,  unless  made  under 
their  common  seal,  that  being  required  in  the  defendants'  spe- 
cial act,  and  if  it  were  binding,  that  mandamus  is  the  more  ap- 
propriate remedy. 

9.  A  railway  company  cannot  acquire  the  franchise,  so  as  to 
be  bound  to  perform  the  duty  of  an  existing  ferry,  without  the 
authority  of  the  legislature,  given  either  expressly,  or  by  neces- 
sary implication.20 

10.  And  the  grant  to  a  railway  company,  having  its  terminus 
at  the  bank  of  the  river  Hudson,  opposite  the  city  of  Albany,  of 
power  to  connect  its  terminus  upon  one  side  of  the  river  with  a 
depot  upon  the  opposite  bank  ;  though  it  does,  by  implication, 
give  the  right  to  establish  a  ferry,  does  not  make  it  a  part  of  the 
railway,  so  that  passengers  crossing  the  river  may  be  regarded  as 
carried  under  the  general  railway  franchise. 

11.  And  where  the  grant  of  such  a  ferry  was  restricted,  by 
express  condition,  to  the  transportation  of  freight  and  persons 
carried  by  the  railway,  and  their  servants  and  employees,  it  was 
held  that  the  company,  by  constantly  carrying  other  persons  gra- 
tuitously across  their  ferry,  were  guilty  of  an  infringement  of  the 

342,  August,  1857.  The  learned  judge  concludes  his  opinion  in  this  case  in  a 
manner  very  creditable  to  his  sense  of  fair  dealing  and  good  faith  in  the  conduct 
of  railway  directors :  "  I  cannot,  however,  but  feel  that  solicitors  acting  for  rail- 
way companies,  like  that  of  the  defendants,  must  be  in  a  most  painful  position 
■when  they  are  unable  to  rely  (as  here  they  cannot)  upon  the  good  faith  or  even 
the  common  honesty  of  directors." 

*>  Battle,  J.,  in  State  v.  Wilmington  &  Manch.  Railw.,  Barber,  234. 


§143. 


WHAT   CONTRACTS   MUST   BE   UNDER   SEAL. 


595 


franchise  of  a  pre-existing  ferry,  the  same  as  if  such  persons  were 
carried  for  toll.21 

12.  And  the  grant  in  express  terms  of  a  ferry  as  a  portion  of 
the  line  of  a  railway,  will  not  empower  the  railway  company  to 
use  the  ferry  for  any  other  purpose  than  the  transportation  of  the 
freight  and  passengers  of  the  company.22 

•SECTION    II. 
Necessity  of  Contracts  of  Corporations  being  under  Seal. 


1 .  The  English  courts  manifest  great  reluc- 
tance to  abandon  the  former  rule  of  law 
on  this  subject. 


n.  2.  Extended  review  of  the  English  and 

some  of  the  American  cases. 
2.  Reference  to  later  decisions. 


§  143.  1.  The  apparent  hesitation  among  the  English  courts 
and  text-writers x  to  accept  the  acknowledged  rule  of  the  Ameri- 
can courts,  that  a  corporation  may  as  well  contract,  by  mere 
words,  without  writing,  or  by  implication  of  law,  or  by  vote,  or  by 
writing,  without  seal,  as  a  natural  person  ;  in  short,  that  in  the 
case  of  a  contract,  by  a  corporation,  a  seal  is  of  no  more  neces- 
sity or  significance  than  in  the  case  of  a  contract  by  a  natural 
person,  would  seem  to  justify  some  reference  here  to  the  present 
state  of  the  English  law  upon  the  subject.2 

81  Aikin  v.  The  Western  Railw.,  20  New  York  Court  of  Appeals,  370. 

22  Fitch  v.  N.  H.  N.  L.  &  Stonington  Railw.  Co.,  30  Conn.  R.  38. 

1  Hodges  on  Railways,  59,  60,  61,  and  notes. 

3  It  would  seem  a  very  obvious  view  of  the  question,  that  if  a  seal  is  not,  as 
was  at  one  time  claimed,  indispensable  to  the  authentication  of  a  corporate  con- 
tract ;  if,  in  short,  it  can  be  dispensed  with  in  any  case,  it  becomes  merely  a 
matter  of  reason  and  discretion,  or  more  properly,  perhaps,  of  intention  and 
convenience,  in  order  to  show  the  definite  act  of  the  company,  and  when  it  shall 
be  required,  or  when  a  contract  shall  be  said  to  be  complete  without  it,  is  rather 
a  question  of  usage  than  an  unbending  rule  of  law.  Beverley  v.  Lincoln  Gas 
Light  &  Coke  Co.,  6  Ad.  &  Ell.  829,  is  the  case.of  gas-meters  ordered  for  the 
use  of  the  company  by  one  of  the  committee,  taken  on  trial,  and  not  returned 
in  a  reasonable  time,  and  the  company  held  liable.  This  is  the  earliest  case  in 
the  English  books  where  the  courts  in  that  country  made  any  formal  departure 
from  the  old  rule,  and  it  was  here  held,  that  a  corporation  aggregate  is  liable  in 
assumpsit  for  goods  sold  and  delivered.  Patteson,  J.,  refers  to  the  American 
authorities  upon  the  subject,  and  says :  "  It  is  well-known  that  the  ancient  rule 

*423 


596  ARRANGEMENTS  BETWEEN  COMPANIES.        §  143. 

2.    The  English  courts  in  many  recent  cases  seem  to  have  ap- 
plied the  general  rule  of  presumption,  by  which  the  conduct  of 

of  the  common  law,  that  a  corporation  aggregate  could  speak  and  act  only  by 
its  common  seal,  has  been  almost  entirely  superseded,  in  practice,  by  the  courts 
of  the  United  States."  And  after  stating  the  greater  facilities  here  for  advance- 
ment in  jurisprudence,  the  learned  judge  enters  a  formal  disclaimer  against 
"  the  right  or  the  wish  to  innovate  on  the  law  upon  any  ground  of  inconven- 
ience, however  strongly  made  out";  "but  when  we  have,"  says  the  learned 
judge,  "  to  deal  with  a  rule  established  in  a  very  different  state  of  society,  at  a 
time  when  corporations  were  comparatively  few  in  number,  and  upon  which  it 
was  very  early  found  necessary  to  ingraft  many  exceptions,  we  think  we  are 
justified  in  treating  it  with  some  degree  of  strictness,  and  are  called  upon  not  to 
recede  from  the  principle  of  any  relaxation  in  it,  which  we  find  to  have  been 
established  by  previous  decisions."  And  this  seems  to  form  the  basis  of  the  sub- 
sequent decisions  of  the  English  courts  upon  the  subject.  The  decisions  have 
evinced  an  effort  to  preserve  the  rule,  and  at  the  same  time  to  invent  and  ingraft 
such  a  number  of  exceptions  upon  it  as  really  to  meet  all  the  inconvenience  or 
absurdity  which  could  fairly  be  objected  against  the  old  rule.  But  in  settling 
the  exceptions,  the  decisions  have  not  always  commended  themselves  as  consist- 
ent either  with  reason  or  with  each  other.  Thus  affording  another  striking 
illustration  of  the  folly  of  attempting  to  maintain  an  absurd  rule,  by  multiplying 
exceptions,  every  one  of  which  was  based  upon  a  principle  of  reason,  which,  if 
carried  to  its  legitimate  results,  would  subvert  the  rule  itself.  This  was  in  1837, 
in  the  K.  B.,  and  established  the  exception  to  the  old  rule  of  executed  contracts 
for  goods  sold  and  used  by  the  company  in  the  business  for  which  it  was  created. 
The  next  year  the  same  court  held,  that  a  corporation  might  also  maintain  an 
action  upon  an  executory  contract  not  under  seal.  Church  v.  The  Imperial  Gas- 
Light  &  Coke  Co.,  6  Ad.  &  Ell.  846.  This  was  upon  a  contract  to  take  gas  of 
the  company,  which  the  defendant'  below  declined  to  receive.  In  1843  a  case 
arose  in  the  C.  P.  Fishmonger's  Co.  v.  Robertson,  5  M.  &.  G.  131.  This  was  an 
action  upon  a  contract  to  pay  the  plaintiffs  l,O0OZ.  to  withdraw  their  opposition 
to  a  bill  in  parliament,  and  to  promote  its  passage  into  a  law,  the  parties  being 
mutually  interested  in  the  same,  and  alleging  performance  of  the  contract  on 
the  part  of  the  plaintiff.  The  subject  was  very  much  considered,  and  an  elab- 
orate opinion  delivered  by  Tindal,  Ch.  J.,  and  it  was  decided,  that  the  contract 
having  been  executed  on  the  part  of  the  corporation,  and  the  defendants  having 
received  the  full  consideration,  were  bound  by  the  contract,  and  that  the  con- 
tract was  not  void  as  against  public  policy.  See  also  Arnold  v.  The  Mayor  of 
Poole,  4  Man.  &  Gr.  860  (1842)  to  the  same  effect,  where  it  is  held,  that  no 
municipal  corporation  but  that  of  London  can  appoint  an  attorney  except 
under  the  corporate  seal.  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815  (1840). 
But  the  court  of  Q.  B.,  in  1846  (Sanders  v.  St.  Neot's  Union,  8  Q.  B.  810), 
held,  that  if  work  be  done  for  a  corporation,  and  adopted  by  them  for  purposes 
connected  with  the  incorporation,  although  not  under  seal,  they  are  liable  for  it. 
The  case  of  the  Governor  &  Company  of  Copper  Miners  v.  Fox,  3  Eng.  L.  &  Eq. 


§  143.  WHAT   CONTRACTS   MUST   BE   UNDER   SEAL.  597 

natural  persons  is  to  be  judged  of,  to  corporations.  Thus3  it  was 
held,  that  where  a  company  has  stood  by  and   seen  works  per- 

420  (1851),  holds  that  the  plaintiffs  could  not  sue  upon  a  mutual  contract,  be- 
cause the  plaintiff's  portion  of  it,  not  being  under  seal,  and  being  for  the  deliv- 
ery of  iron  rails,  and  the  plaintiffs  being  incorporated  for  dealing  in  copper,  not 
coming  within  the  proper  business  of  the  company,  as  a  trading  company,  they 
were  not  bound  by  it,  and  by  consequence  the  defendants  were  not.  This  case 
admits  the  exception  from  the  old  rule  of  all  contracts  pertaining  to  the  proper 
business  of  the  incorporation,  and  then  attempts  a  distinction  between  dealing 
in  iron  and  copper  !  —  a  distinction  which,  if  it  be  of  any  force,  would  show  that 
the  contract,  being  ultra  vires,  would  not  bind  the  company  in  any  form.  The 
next  case  (Homersham  v.  Wolverhampton  Waterworks,  6  Railw.  C,  790,  ante, 
§  113),  in  the  order  of  time,  is  for  extra  work,  under  a  contract,  which  was  done 
in  express  violation  of  the  provisions  of  the  general  contract,  in  regard  to  extra 
work,  and  was  not  authorized,  in  the  manner  required  in  relation  to  contracts, 
by  the  company's  charter.  It  seems  to  have  been  correctly  enough  decided, 
upon  either  ground,  that  no  recovery  could  be  had.  Ante,  §  113,  and  cases  cited. 
Lamprell  v.  Billericay  Union,  3  Exch.  283  (1849).  But  Cope  v.  Thames  Haven 
Dock  &  Railw.  Co.,  3  Exch.  841,  seems  to  be  an  express  decision  affirming  the 
general  necessity  of  the  corporate  seal  to  bind  the  company  (1849).  So  also 
Diggle  v.  The  London  &  Blackwall  Railw.,  5  Exch.  442,  is  of  the  same  charac- 
ter, being  for  extra  work  performed  in  express  violation  of  the  general  contract ; 
and  there  are  some  other  cases  of  this  kind  in  the  English  Reports. 

But  the  next  case  in  the  order  of  time,  involving  the  general  question,  is  Fin- 
lay  v.  Bristol  &  Exeter  Railw.,  9  Eng.  L.  &  Eq.  483,  and  here  it  was  held,  that 
although  a  corporation  was  liable  for  use  and  occupation,  on  a  parole  demise,  it 
is  only  liable  for  the  actual  occupation,  and  a  continuous  occupation,  for  sev- 
eral years,  will  not  render  the  corporation  tenants  from  year  to  year.  In  Clark  v. 
The  Guardians  of  the  Cuckfield  Union,  11  Eng.  L.  &  Eq.  442,  the  cases  are 
all  elaborately  reviewed  by  Wightman,  J.,  and  the  conclusion  arrived  at,  that 
whenever  the  purposes  for  which  a  corporation  is  created  render  it  necessary 
that  work  should  be  done,  or  goods  supplied,  to  carry  such  purposes  into  effect, 
and  such  work  is  done,  or  such  goods  supplied,  and  accepted  by  the  corporation, 
and  the  whole  consideration  for  payment  is  executed,  the  corporation  cannot  re- 
fuse to  pay,  upon  the  ground  that  the  contract  was  not  under  seal;  and  the  case 
of  Lamprell  v.  Billericay  Union,  3  Exch.  283,  is  seriously  questioned.  In  Lowe 
v.  The  London  &  N.  W.  Railw.,  14  Eng.  L.  &  Eq.  18,  it  is  held,  that  where  a 
railway  have  taken  possession  of  land,  and  occupied  it,  by  the  permission  of  the 
owner,  for  the  purposes  of  their  incorporation,  that  they  are  liable  to  be  sued  in 
assumpsit,  for  use  and  occupation,  notwithstanding  they  have  not  entered  into  a 
contract  under  their  common  seal.  But  in  the  case  of  Smart  v.  The  Guardians 
of  the  Poor  of  West  Ham  Union,  30  Eng.  L.  &  Eq.  560  (1855),  the  question 
came  before  the  Court  of  Exchequer,  and  the  judges  manifested  a  firm  deter- 

3  Hill  v.  South  Staffordshire  Railw.  Co.,  11  Jur.  N.  S.  192. 


598  ARRANGEMENTS  BETWEEN  COMPANIES.         §  143. 

formed,  it  will  be  held  to  have  assented  to  them,  as  much  as  if  it 
had  been  a  natural  person.     But  the  principle  that  a  company 

ruination  to  adhere  strictly  to  the  old  rule.  Parke,  B.,  says  :  "  With  respect  to 
the  case  of  Clavk  v.  The  Guardians  of  the  Cuckfield  Union,  I  must  say  that  I 
am  not  satisfied  with  the  observations  of  my  brother  Wightman,  for  if  that  case 
be  correctly  decided,-the  effect  would  be  to  overrule  several  previous  decisions 
of  this  court."  And  Alderson,  B.,  says  :  "  We  must  adhere  to  former  decisions, 
till  overruled  by  a  court  of  error." 

But  in  the  case  of  the  Australian  Royal  Mail  Co.  v.  Marzetti,  in  June,  1855, 
in  the  Court  of  Exchequer,  32  Eng.  L.  &  Eq.  572,  Pollock;  Ch.  B.,  says,  in  re- 
gard to  a  contract  not  under  seal :  "  The  principle  applicable  to  corporations  is, 
that  in  respect  of  small  matters,  where  it  would  be  absurd  and  inconvenient  to 
require  them  to  put  their  seals  to  contracts,  in  those  cases  they  may  contract 
without  seal,"  also  "  in  respect  of  matters  for  which  it  was  created."  "  These 
principles,"  adds  the  learned  chief  baron,  "  are  founded  on  justice,  public  con- 
venience, and  sound  sense,"  and  he  might  have  said,  perhaps,  with  equal  pro- 
priety, will  finally  be  found  virtually  to  include  all  the  legitimate  business  of 
corporations.  For  it  is  impossible  to  make  any  sensible  distinction,  between  the 
proper  business  of  a  corporation,  as  appears  upon  the  face  of  their  charter,  and 
that  which  is  purely  incidental  or  ancillary  to  the  proper  business  of  the  corpora- 
tion. And  this  is  conceded  by  Lord  Campbell,  in  the  Governor  &  Company  of 
Copper  Miners  v.  Fox,  when  refining  upon  the  very  elemental  distinction  be- 
tween a  trade  in  iron  and  copper. 

And  if  we  allow  corporations  to  bind  themselves,  without  seal,  in  all  the  busi- 
ness created  by  their  charter,  and  in  all  that  is  incidental  thereto,  we  shall  have 
few  cases  remaining. 

The  only  remaining  case,  directly  upon  the  subject,  which  has  yet  reached  us, 
is  that  of  Henderson  v.  The  Australian  Royal  Mail  Steam  Nav.  Co.,  32  Eng.  L. 
&  Eq.  167  (June,  1855),  where  the  defendants,  a  company  incorporated  for 
the  purpose  of  carrying  the  mails,  passengers,  and  cargo,  between  Great  Britain 
and  the  Cape  of  Good  Hope  and  Australia,  and  for  that  purpose  to  construct 
and  maintain  steam  and  other  vessels,  and  to  do  all  such  matters  as  might  be  in- 
cidental to  such  undertaking,  entered  into  a  contract  with  the  plaintiff  to  go  out 
to  Sydney  and  bring  home  a  sloop  belonging  to  the  company  which  was  unsea- 
worthy,  and  it  was  held,  that  the  action  might  be  maintained,  for  the  service 
performed  under  the  contract,  although  the  contract  was  not  under  seal. 

The  opinion  of  the  judges  at  length  will  afford  the  safest  commentary  upon 
the  present  state  of  the  English  law  upon  the  subject,  and  will  present  a  very  in- 
structive contrast  with  the  quiet,  and  perfectly  settled,  and  satisfactory  state  of 
the  law  here  upon  the  same  subject,  from  having,  as  we  believe,  more  wisely, 
abandoned  a  rule  which  grew  out  of  an  uncultivated  state  of  society,  and  which 
had  a  very  limited  application,  when  adopted,  and  which  is  found,  in  practice, 
utterly  inconsistent  with  the  views  of  business  men,  in  all  commercial  countries, 
at  the  present  day. 

Wightman,  J.  :  "  I  am  of  opinion  that  our  judgment  should  be  for  the  plaintiff. 


§  143.  WHAT   CONTRACTS   MUST   BE   UNDER   SEAL.  599 

is  not  bound  by  a  deed  of  agreement  entered  into  by  its  direc- 
tors or  trustees  for  and  on  behalf  of  the  company,  which  is  not 

This  is  an  action  against  the  Australian  Royal  Mail  Steam  Navigation  Company, 
which  is  a  company  constituted  expressly  for  the  purpose  of  carrying  on  a  trade 
by  vessels;  it  is  incorporated  'for  the  purpose  of  undertaking  the  establishment 
and  maintenance  of  a  communication,  by  means  of  steam  navigation,  or  other- 
wise, and  the  carrying  of  the  royal  mails,  passengers,  and  cargo,  between  Great 
Britain  and  Ireland,  and  the  Cape  of  Good  Hope  and  Australasia,'  and  for  that 
purpose  it  must  maintain  and  employ  many  vessels.  Can  it  be  doubted  that 
amongst  the  ordinary  operations  of  the  company  there  would  arise  a  necessity  for 
employing  persons  to  navigate  or  bring  home  vessels  which  met  with  accidents 
abroad  ?  The  words  of  the  contract,  as  set  out  in  the  declaration,  show  an  em- 
ployment directly  within  the  .scope  of  the  objects  for  which  the  company  was 
incorporated. 

"  It  is  true  there  is  a  conflict  of  authorities  which  it  is  difficult  to  reconcile. 
Two  or  three  cases  in  the  Court  of  Exchequer,  Lamprell  v.  The  Billericay 
Union,  3  Exch.  283,  and  the  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815,  and 
Arnold  v.  The  Mayor  of  Poole,  4  Man.  &  Gr.  8G0,  in  the  Court  of  Common 
Pleas,  appear  to  militate  against  the  view  taken  by  this  court.  But  those  deci- 
sions proceded  upon  a  principle  adapted  to  municipal  corporations,  which  are 
created  for  other  objects  than  trade;  and  the  Court  of  Exchequer  applied 
that  principle  to  modern  trading  companies,  which  are  of  an  entirely  different 
character. 

"  In  early  times  there  was  a  great  relaxation  of  the  rule  which  required  that 
the  contracts  of  corporations  should  be -under  seal,  and  that  relaxation  has  been 
gradually  extended.  At  first  the  relaxation  was  made  only  in  those  cases  men- 
tioned by  Mr.  Lush,  when  the  subject-matter  of  the  contract  was  of  small  moment 
and  frequent  occurrence,  which  in  the  case  of  municipal  corporations  might  be 
the  only  exceptions  necessary.  But  in  the  later  cases  there  was  a  further  re- 
laxation, especially  in  the  case  of  corporations  created  by  charter  for  trading 
purposes,  and  other  like  corporations.  The  general  result  of  the  cases  men- 
tioned in  Clark  r.  The  Guardians  of  the  Cuckfield  Union,  16  Jur.  686  ;  s.  c.  11 
Eng.  L.  &  Eq.  442,  is,  that  in  the  case  of  trading  corporations,  wherever  the 
contract  relates  and  is  essential  to  the  purpose  for  which  the  company  was  in- 
corporated, it  may  be  enforced,  though  not  under  seal.  In  deciding  that  case,  I 
reviewed  all  the  cases,  and  adhere  to  the  opinion  which  I  then  expressed,  that 
in  such  a  case  as  the  present,  where  the  contract  is  essentially  necessary  to  the 
objects  of  the  company,  and  directly  within  the  scope  of  their  charter,  it  may  be 
enforced,  though  made  by  parol." 

Erie,  J. :  "I  am  of  opinion  that  the  contract  is  binding  on  the  corporation, 
though  not  under  seal,  on  the  ground  that  it  is  directly  within  the  scope  of  the 
company's  charter. 

"  The  authorities  are  apparently  conflicting,  but  none  conflict  with  the  princi- 
ple laid  down  by  my  brother  Wujhtman,  in  which  I  concur.  In  Beverley  v.  The 
Lincoln  Gas  Light  and  Coke  Company,  6  Ad.  &  Ell.  829,  the  supply  of  gas  was 


600  ARRANGEMENTS  BETWEEN  COMPANIES.         §  143. 

under  the  seal  of  the  company,4  is  still  adhered  to  by  the  Eng- 
lish and  Irish  courts.     And  to   this  extent  the  rule  may  not  be 

directly  incident  to  the  purpose  for  which  the  company  was  incorporated.  So 
also  in  Church  v.  The  Imperial  Gas  Light  &  Coke  Company,  6  Ad.  &  Ell.  846  ; 
and  in  Sanders  v.  The  Guardians  of  the  St.  Neot's  Union,  8  Q.  B.  810;  and  in 
the  elaborate  judgment  of  Wightman,  J.,  in  Clark  v.  The  Guardians  of  the 
Cuckfield  Union,  16  Jur.  686  ;  s.  c.  11  Eng.  L.  &  Eq.  442,  it  was  assumed  that 
the  matter  was  within  the  scope  of  the  company's  charter. 

"  The  judgment  delivered  by  Lord  Campbell,  Ch.  J.,  for  this  court,  in  the 
Copper  Miners'  Company  v.  Fox,  16  Q.  B.  229  ;  s.  c.  3  Eng.  L.  &  Eq.  420, 
enunciated  the  principle.  The  principle  affirmed  by  this  series  of  cases  does 
not  conflict  with  the  two  leading  cases  in  the  Court  of  Exchequer,  which  were 
cases  of  municipal  corporations.  Neither  building,  which  was  the  matter  in  the 
Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815,  nor  litigation,  which  was  the 
matter  in  Arnold  v.  The  Mayor  of  Poole,  4  Man.  &  Gr.  860,  was  incidental 
directly  to  the  purposes  for  which  the  corporations  of  those  towns  were  con- 
stituted. 

"  The  other  cases  to  which  I  adverted  were  corporations  for  trading  purposes, 
and  it  is  difficult  to  reconcile  them.  In  Lamprell  v.  The  Guardians  of  the  Bil- 
lericay  Union,  3  Exch.  283,  the  action  related  to  the  building  a  workhouse,  with 
which  the  defendants  were,  as  a  corporation,  connected.  Diggle  v.  The  London 
&  Blackwall  Railw.,  5  Exch.  442,  is  that  which  to  the  greatest  degree  conflicts, 
unless  it  can  be  distinguished  or  explained  on  the  ground  that  it  was  a  unique 
contract ;  if  it  cannot,  I  do  not  agree  to  it ;  and  in  this  conflict  of  authorities  I 
adhere  to  those  who  oppose  it. 

"  The  notion  that  a  set  of  contracts  shall  have  their  validity  depending  on  the 
frequency  and  insignificancy  of  the  subject-matter  is  of  such  extreme  pernicious- 
ness,  that  I  do  not  think  that  it  can  be  adhered  to,  and  must  be  considered  as  ap- 
plicable only  to  municipal  corporations.  It  has  been  so  held  as  to  contracts  for 
servants,  but  I  do  not  think  that  it  was  meant  to  be  said  that  the  contract  was 
valid  if  the  matter  was  of  small  importance,  and  invalid  if  the  matter  was  of  great 
importance  ;  and  indeed,  in  the  case  of  trading  companies,  which  it  is  allowed 
may  draw  and  accept  bills  of  exchange  not  under  seal,  it  is  obvious  that  insig- 
nificancy is  no  element ;  neither  is  the  frequency  or  rarity  of  the  contract  an 
element.  The  nature  of  the  contract  and  the  subject-matter  of  it  must  be  the 
principle  which  governs  the  question  whether  it  is  valid,  though  not  under  seal. 
It  would  be  pernicious  to  the  law  of  the  country,  that  under  the  semblance  of  a 
contract  parties  should  obtain  goods  or  services,  and  not  be  compellable  to  pay 
for  them.  The  Court  of  Exchequer  had  an  opinion  that  it  would  be  important 
that  the  rule  should  be  certain ;  but  their  resort  to  the  rule,  that  the  contract  in 
all  cases,  with  the  above-mentioned  exceptions,  should  be  under  seal,  cannot  be 
acted  upon." 

Crompton,  J.     "  I  concur  in  the  principle  now  adopted  by  my  brothers  Wight- 

4  McArdle  v.  Irish  Iodine  Co.,  15  Ir.  Com.  Law,  146. 


§  143.  WHAT   CONTRACTS   MUST   BE   UNDER   SEAL.  601 

objectionable.  But  there  are  many  American  cases,  where  the 
construction  in  favor  of  the  responsibility  of  the  company  for  the 

man  and  Erie.  It  is  desirable  that  in  the  case  of  trading  corporations  there 
should  be  a  relaxation  of  the  rule,  that  the  contract  of  corporations  should  be 
under  seal,  where  the  contract  is  for  the  purpose  of  carrying  on  their  trade. 
That  principle  was  supported  in  The  Copper  Miners  Company  v.  Fox,  16  Q.  B. 
229  ;  s.  c.  3  Eng.  L.  &  Eq.  420,  and  Clark  v.  The  Guardians  of  the  Cuckfield 
Union,  16  Jur.  686  ;  s.  c.  11  Eng.  L.  &  Eq.  442  ;  and  it  is  an  important  prin- 
ciple, and  may  be  the  governing  principle  in  these  cases ;  and  but  for  the  two 
cases  in  the  Court  of  Exchequer,  I  should  think  that  the  appointment  of  the 
plaintiff  in  this  case  did  not  require  a  seal.  I  cannot,  however,  distinguish  this 
from  Lamprell  v.  The  Guardians  of  the  Billericay  Union,  3  Exch.  283,  and 
Diggle  v.  The  London  &  Blackwall  Railw.  Company,  5  Exch.  442  ;  and  if  the 
judgment  of  the  court  depended  upon  me,  I  might  defer  to  them,  at  the  same 
time  wishing  the  other  principle  to  prevail.  I  cannot  disguise  from  myself  that 
we  are  deciding  against  the  cases  in  the  Court  of  Exchequer,  and  the  rule  which 
that  court  adopted.  But  I  agree  with  what  my  brothers  have  said ;  and  I  will 
add,  that  those  cases  created  considerable  surprise  at  the  time  " 

And  in  a  still  more  recent  case,  Reuter  v.  The  Electric  Telegraph  Co.,  37 
Eng.  L.  &  Eq.  189  (May,  1856),  in  the  Court  of  Queen's  Bench,  the  defendants 
had  made  a  contract,  under  their  corporate  seal,  with  the  plaintiff,  to  transmit 
all  his  messages,  and  all  he  could  collect,  for  a  commission  not  exceeding  £500, 
or  less  than  £300  per  annum,  and  while  this  contract  was  in  existence,  the 
chairman  of  the  company  entered  into  a  parol  agreement  with  the  plaintiff,  to 
pay  him  at  the  increased  rate  of  £50  per  cent.,  in  consideration  of  the  plaintiff's 
further  services  in  collecting  public  intelligence  and  sending  it  by  the  company's 
telegraph.  These  additional  services  were  found  to  be  beneficial  to  the  com- 
pany, and  this  agreement  Was  entered  upon  the  minutes  of  the  company,  and 
the  plaintiff  had  received  £300  for  services  in  pursuance  of  it. 

The  deed  of  settlement  provided,  that  all  contracts,  where  the  consideration 
exceeds  £50,  should  be  signed  by  three  directors.  It  was  held,  that  the  parol 
contract  having  been  acted  upon,  and  ratified  by  the  company,  was  binding 
upon  them.  De  Grave  v.  The  Mayor  of  Monmouth,  is  a  case  of  ratification,  4 
C.  &P.  111. 

And  in  Bill  v.  The  Darenth  Valley  Railw.,  37  Eng.  L.  &  Eq.  539,  the  Court 
of  Exchequer  held,  that  one  who  had  served  the  company,  as  secretary,  might 
recover  compensation  for  his  services,  although  the  remuneration  to  be  paid  him 
had  not  been  fixed,  at  a  general  meeting  of  the  company,  as  required  by  the 
English  statute.  That  was  held  to  determine  the  duty  of  the  directors  towards 
the  company,  and  not  to  limit  the  liability  of  the  company  to  third  parties,  which 
is  the  view  taken  of  the  subject  here.  Noyes  v.  Rut.  &  Burling.  Railw.,  27  Vt. 
R.  110-113;  ante,  §  136,  n.  5. 

But  it  has  been  held,  that  if  a  corporation  contract  through  an  agent,  who  at- 
taches a  seal  to  his  execution  of  the  contract  on  their  behalf,  it  thereby  becomes 
the  deed  of  the  company,  although  the  seal  was  not  their  common  seal,  and  an 


602  ARRANGEMENTS  BETWEEN  COMPANIES.         §  143. 

act  of  the  directors,  even  in  executing  a  contract  under  seal, 
without  using  the  specific  seal  of  the  corporation,  is  more  forci- 
ble, the  directors  for  the  time  being  held  to  have  adopted  the 
seal  used  as  the  corporate  seal,  the  same  as  any  number  of  nat- 
ural persons  may  adopt  the  same  seal.  But  this  latitude  of  con- 
struction in  regard  to  the  seal  of  a  corporation  is  common  in  this 

action  of  assumpsit  cannot  be  maintained  upon  it.  Porter  v.  Androscoggin  & 
Kennebec  Raihv.,  37  Maine  R.  349.  But  it  must  be  executed  in  the  name  of 
the  company.     Sherman  v.  New  York  Central  Railw.,  22  Barb.  239. 

If,  in  an  action  of  assumpsit,  upon  a  contract,  purporting  to  be  executed  by  a 
railway  company,  the  company  claim  that  it  was  executed  under  their  seal,  and 
that  therefore  an  action  of  assumpsit  will  not  lie  upon  it,  and  prevail,  upon  this 
ground,  they  are  estopped  to  deny,  in  a  subsequent  action  of  covenant,  upon 
the  same  contract,  that  the  seal  attached  to  the  contract  is  the  seal  of  the  com- 
pany. Philadelphia,  Wilmington  &  Baltimore  Railw.  v.  Howard,  13  Howard, 
307. 

But  the  English  courts  do  not  hold  the  corporation  absolutely  bound  by  con- 
tracts under  their  common  seal,  thus  reducing  the  question  to  one  of  authority, 
in  fact,  to  enter  into  the  contract.  Shrewsbury  &  Birmingham  Railw.  v.  Lon- 
don &  N.  W.  Railw. ;  House  of  Lords,  May,  1857,  29  Law  Times,  186. 

In  The  London  Docks  Co.  v.  Sinnott,  30  Law  Times,  164,  (Nov.  1857),  the 
Court  of  King's  Bench  maintain  the  general  rule  that  "  corporations  aggregate 
can  only  be  bound  by  contracts  under  the  seal  of  the  corporation."  Lord  Camp- 
bell, Ch.  J.,  in  giving  judgment,  enumerates  the  following  exceptions  to  the  gen- 
eral rule,  mercantile  contracts,  contracts  with  customers,  and  such  as  do  not  ad- 
mit of  being  executed  under  seal,  as  bills  of  exchange.  But  in  some  English 
cases,  decided  since  the  publication  of  the  second  edition  of  this  work,  it  seems 
to  be  conceded  that  corporations  may  be  as  much  bound  by  the  contracts  of 
their  agents  as  natural  persons.  Thus  in  Wilson  v.  The  West  Hartlepool 
Railw.  Co.,  10  Jur.  N.  S.  1064,  it  was  held  that  when  a  company,  through  their 
directors,  hold  out  to  the  world  that  a  person  is  their  agent  for  a  particular  pur- 
pose, they  cannot  afterwards  dispute  acts  done  by  him,  within  the  scope  of  such 
countenanced  agency.  And  accordingly  where  the  general  manager  of  a  rail- 
way company  had  in  several  instances  entered  into  contracts  for  the  sale  of  the 
company's  lands,  which  contracts  had  been  adopted  by  the  company,  and  he 
entered  into  a  contract  with  the  plaintiff  for  the  sale  to  him  of  a  portion  of  their 
land,  and  in  pursuance  of  the  terms  of  the  contract  the  company's  servants  laid 
down  a  branch  line  of  railway,  and  the  plaintiff  removed  machinery  and  other 
effects  to  the  land,  and  no  act  was  done  by  the  company  to  lead  the  plaintiff  to 
believe  that  the  contract  had  been  entered  into  without  authority ;  but  they 
subsequently  repudiated  the  authority  of  the  manager  and  refused  to  convey 
the  land  to  the  plaintiff,  upon  bill  for  specific  performance ;  it  was  held  that  the 
case  fell  within  the  principle  of  the  London  &  Birmingham  Railw.  Co.  v.  Win- 
ter, Cr.  &  Ph.  57,  and  specific  performance  was  decreed. 


§  144.    DUTY  OF  COMPANIES  TO  PASSENGERS  AND  OTHERS.      603 

country,  it  being  generally  held  indispensable  to  bind  the  com- 
pany by  deed  that  their  corporate  seal  should  be  used. 


*SECTION    III. 
Duty  of  the  respective  Companies  to  Passengers  and  Others. 

1.  Company  bound  to  keep  road  safe.     Act    6.   This  rule  extends  to  railways,  where  per- 

of  other  companies  no  excuse.  sons  are  rightfully  upon  them. 

2.  Some  cases  hold  that  passengers  can  only    n.  3.   Cases,  as  to  the  necessity  of  privity  of 


sue  the  company  carrying  them. 

3.  Passenger  curriers  bound  to  make  landing- 

places  safe. 

4.  But  those  who  ride  upon  freight  trains,  by 

favor,  can  only  require  such  security  as 
is  usual  upon  such  trains. 
6.   Owners  of  all  property  bound  to  keep  it  in 
state,  not  to  expose  others  to  injury. 


contract  existing,  reviewed. 

7.  One  who  keeps  open  public  works  is  bound 

to  keep  them  safe  for  use. 

8.  Corporations  presumptively  responsible  to 

the  sa7ne  extent  as  natural  persons  iti  the 
same  situation. 


§  144.  1.  A  public  company,  like  a  canal  or  railway,  who  are 
allowed  to  take  tolls,  owe  a  duty  to  the  public  to  remove  all  ob- 
*  structions  in  the  canal  or  upon  the  railway,  although  not 
caused  by  themselves  or  their  servants,  but  by  those  who  are 
lawfully  in  *  the  use  of  the  canal  or  railway,  or  by  mere  stran- 
gers.1 Nor  can  a  *  railway  company  excuse  themselves  from  lia- 
bility for  injury  to  passengers  carried  over  any  part  of  their  road, 
by  showing  that  the  *  particular  neglect  was  that  of  a  servant  em- 
ployed and  paid  by  a  connecting  road  as  a  switchman  at  the 
junction  of  two  railways.2 

*  2.  But  it  was  held  that  a  passenger,  who  suffered  an  injury 
in  attempting  to  get  upon  the  cars  of  one  company  while  using 

1  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  Ell.  223  ;  and  Lancaster  Canal 
Co.  v.  Parnaby,  Id.  230.     See  post,  §  145,  pi.  7,  8,  and  note. 

*  McElroy  v.  Nashua  &  Lowell  Bailw.,  4  Cush.  400.  Shaio,  Ch.  J.,  here 
says :  "  The  switch  in  question,  in  the  careless  and  negligent  management  of 
which  the  damage  occurred,  was  a  part  of  defendants'  road,  over  which  they 
must  necessarily  carry  all  their  passengers,  and  although  provided  for,  and  at- 
tended by  a  servant  of  the  Concord  company,  at  their  expense,  yet  it  was  still  a 
part  of  the  Nashua  &  Lowell  Railroad,  and  it  was  within  the  scope  of  their  duty 
to  see  that  the  switch  was  rightly  constructed,  and  attended,  and  managed,  be- 
fore they  were  justified  in  carrying  passengers  over  it." 

*424-429 


604  ARRANGEMENTS  BETWEEN  COMPANIES.         §  144. 

the  road  of  another  company,  by  contract  with  such  company, 
through  a  defect  in  the  construction  of  the  road  of  the  latter 
company,  could  not  maintain  an  action  against  them,  there  be- 
ing no  privity  of  *  contract  between  the  plaintiff'  and  such  com- 
pany ;  the  remedy  being  in  such  case  against  the  company  who 
were  carrying  the  plaintiff  as  a  passenger.3 

3  Murch  v.  The  Concord  Railw.,  9  Foster,  9;  Winterbottom  v.  Wright,  10 
M.  &  W.  109.  But  a  railway  company  owe  a  public  duty,  independent  of  all 
privity  of  contract,  to  keep  their  public  works  in  such  a  state  of  repair,  and  so 
watched  and  tended  as  to  insure  the  safety  of  all  who  are  lawfully  upon  them, 
either  by  their  direct  permission  or  mediately  through  contract  with  other 
parties.  Sawyer  v.  Rutland  &  Bur.  Raijw.,  27  Vt.  R.  377.  This  is  here  thus 
stated  by  Ishani,  J. :  "  That  duty  is  imposed  upon  the  defendants  at  common 
law,  and  it  arises  not  from  any  contract  of  the  parties,  but  from  the  acceptance 
of  their  charter,  and  from  the  character  of  the  services  they  have  assumed  to 
perform.  The  obligation  to  perform  that  duty  is  coextensive  with  the  lawful 
use  of  the  road,  and  is  required  as  a  matter  of  public  security  and  safety." 
The  same  principle  is  maintained  in  Smith  v.  New  York  &  Harlem  Railw.  Co., 
19  N.  Y.  R.  127,  where  it  was  decided  that  a  switch-tender,  employed  by  a  rail- 
way company  on  a  portion  of  its  road  upon  which  it  permits  another  company 
to  run  trains,  is  not  a  servant  of  the  latter ;  and  an  engineer  of  the  latter,  in- 
jured by  the  negligence  of  such  switch-tender,  may  maintain  an  action  against 
the  company  employing  him.  But  where  animals  were  killed  by  the  train  of 
one  company,  while  rightfully  upon  the  track  of  another  company,  it  was  held 
that  the  company  owning  the  road  was  responsible  for  the  damage.  Ind.  &  Mad- 
ison.Railw.  v.  Solomon,  23  Ind.  R.  534.  So  an  apothecary,  who  sold  a  deadly 
poison  labelled  as  a  harmless  medicine,  was  held  directly  liable  to  all  persons 
injured  thereby,  in  consequence  of  the  false  label,  without  fault  on  their  part. 
The  liability  of  the  apothecary  arises,  not  out  of  any  contract  or  privity  between 
him  and  the  person  injured,  but  out  of  the  duty  which  the  law  imposes  upon  all, 
to  avoid  acts  in  their  nature  dangerous  to  the  lives  of  others.  He  is  liable,  there- 
fore, though  the  poisonous  drug,  with  such  label,  may  have  passed  through  many 
intermediate  sales  before  it  reaches  the  hands  of  the  person  injured,  upon  the 
same  principle  that  one  who  suffers  a  dangerous  animal  to  go  at  large,  is  respon- 
sible for  the  consequences.     Thomas  v.  Winchester,  2  Seld.  397. 

In  Toomey  v.  London  Br.  &  South  C.  Railw.,  3  C.  B.  (N.  S.)  146,  the  plaintiff 
mistook  a  door  at  a  railway  station,  and  passing  through  it,  instead  of  another, 
fell  down  a  flight  of  steps  and  was  hurt.  There  was  a  light  over  the  door  which 
he  intended  to  pass  through,  and  a  printed  notice  showing  the  purpose  of  it. 
There  was  also  an  inscription  over  the  other,  but  no  light.  The  defendant 
could  not  read.  There  was  no  evidence  that  the  steps  were  more  than  ordi- 
narily dangei*ous.  Held  that  the  company  were  not  liable.  But  a  railway 
company  is  bound  to  fence  a  station  so  that  the  public  may  not  be  misled,  by 
seeing  a  place  unfenced,  into  injuring  themselves  by  passing  that  way,  being  the 
*430 


§  144.    DUTY  OF  COMPANIES  TO  PASSENGERS  AND  OTHERS.      605 

3.  And  while  the  cases  recognize  the  duty  in  such  companies 
as  carry  passengers,  either, upon  their  own  road  or  that  of  other 
companies,  by  permission  or  lease,  to  make  the  approaches  to 
such  road  safe,  at  all  points  where  freight  or  passengers  are 
usually  received,  this  duty  does  not  exist  in  regard  to  a  passen- 
ger who,  out  of  special  favor,  is  allowed  to  get  upon  the  train  at 
an  unusual  place  for  receiving  passengers.3 

4.  And  one  who,  by  favor,  is  allowed  to  travel  upon  a  freight- 
car,  contrary  to  the  usual  custom  of  the  company,  is  bound  to 
be  satisfied  with  such  facilities  and  accommodations  as  usually 
exist  upon  freight  trains,  as  railway  companies  are  not  to  be 
regarded  as  common  carriers  of  passengers  upon  their  freight 
trains,  unless  they  make  it  an  habitual  business.3 

5.  It  has  been  held  that  natural  persons,  who  assume  no  pub- 
lic duties,  are  liable,  if  they  suffer  their  property  to  remain  in  a 
dangerous  condition ;  as  that  the  occupier  of  land  is  bound  to 
fence  off  a  hole  or  area  upon  it  which  adjoins  or  is  so  close  to 
a  highway  that  it  may  be  dangerous  to  passers-by,  if  left  un- 
guarded.4 

shortest  to  the  station.  Where  a  passenger,  in  waiting  for  a  train,  had  gone  to 
a  public  house  for  refreshments,  the  porter  showing  him  the  way  with  his  lantern, 
and  hearing  the  bell  ring  started  out  for  the  station,  and  mistaking  the  light  of 
the  engine  for  that  of  the  station  crossed  an  open  space  direct,  and  was  injured 
by  falling  into  a  hole  three  feet  deep,  it  was  held  the  company  were  liable.  Bur- 
gess v.  Great  Western  Railw.,  6  C.  B.  N.  S.  923. 

Nor  is  a  railway  company  liable  for  an  injury  through  the  defect  of  a  crane 
which  they  had  furnished  to  enable  the  consignee  of  heavy  goods  to  unlade 
them  from  the  cars,  although  such  crane  was  known  to  them  to  be  inadequate 
for  the  use  for  which  it  was  furnished,  the  party  injured  having  been  employed 
to  assist  the  consignee,  and  thereby  lost  his  life.  The  case  is  put  upon  the 
ground  of  want  of  privity,  it  being  admitted  that  the  company  would,  in  such 
case,  have  been  liable  to  the  party  to  whom  they  furnished  the  crane,  if  he  or 
his  ordinary  servants  had  sustained  injury  in  its  prudent  and  lawful  use.  But 
the  party  here  was  called  in  for  the  occasion.  Blakemore  v.  the  Bristol  &  Exe- 
ter Railw.,  31  Law  Times,  12.  It  seems  to  us  the  principle  of  want  of  privity 
is  here  misapplied.  This  is  a  clear  case  of  tort  and  not  of  contract,  and  the 
party  injured,  although  called  in  for  the  occasion,  was  pro  hac  vice  a  servant  of 
the  borrower,  and  it  was  the  same  as  if  the  borrower  himself  had  been  injured. 
The  furnishing  the  instrument  had  express  and  direct  reference  to  its  use  by  the 
consignee  and  his  servants,  extraordinary  as  well  as  ordinary. 

4  Barnes  v.  Ward,  2  Carr.  &  K.  661. 


606  ARRANGEMENTS   BETWEEN    COMPANIES.  §  144. 

6.  The  same  rule  has  often  been  extended  to  turnpike  roads  5 
*  and  to  plank  roads,  where  the  statute  made  no  provision  for 
the  liability  of  the  company.6  And  the  same  rule  has  been  ex- 
tended generally  to  railway  companies  in  this  country,  without 
question,  so  far  as  persons  are  rightfully  in  the  use  of  the  same.7 
It  was  held  that  the  owner  of  a  car  which  was  in  the  use  of  an- 
other party,  upon  a  railway,  by  contract  between  him  and  the 
company,  and  suffered  an  injury  by  reason  of  the  bad  state  of 
the  railway,  might  maintain  an  action  against  the  company.7 

7.  This  principle,  or  an  extension  of  it,  has  been  a  good  deal 
discussed  in  a  very  late  case  in  the  House  of  Lords.8     The  plain- 

8  Randall  v.  Cheshire  Turnpike  Co.,  6  N.  H.  R.  147  ;  Townshend  v.  Susque- 
hannah  T.  Co.,  6  Johns.  90. 

8  Davis  v.  Lamoille  County  Plank  Road,  27  Vt.  R.  602. 

In  the  very  recent  ease  of  Gibbs  v.  Trustees  of  the  Liverpool  Docks,  31  Law 
Times,  22  (Feb.,  1858),  it  was  held,  in  the  Exchequer  Chamber,  reversing  the 
judgment  of  the  Court  of  Exchequer,  that  it  is  the  duty  of  those  receiving  tolls, 
whether  as  trustees  or  otherwise,  not  to  allow  a  dock  to  remain  open  for  public 
use,  when  they  know  that  it  is  in  such  a  state  that  it  cannot  be  used  without 
danger,  citing  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  Ell.  223,  and  distin- 
guishing the  case  from  Metcalfe  v.  Hetherington,  11  Exch.  257.  But  it  seems 
the  party  is  never  liable  in  such  case,  unless  he  knew  or  might  have  known  of 
the  defect  but  for  his  own  neglect  of  duty.      McGinity  ».  Mayor  of  New  York, 

5  Duer,  674.     See  post,  n.  8. 

T  Cumberland  Valley  Railw.  v.  Hughs,  11  Penn.  St.  141. 

8  The  Mersey  Docks  &  Harbor  Board  v.  Penhallow.  12  Jur.  N.  S.  571  (1866). 
The  recent  cases  bearing  upon  the  general  question  of  the  responsibility  of  one 
party  for  negligence  in  his  own  business}  which  incidentally  operates  to  produce 
injury  to  another,  and  which  are  here  discussed  by  court  or  counsel,  are  the 
following:  Metcalfe  v.  Hetherington,  5  H.  &  N  719;  Coe  v.  Wise,  10  Jur.  N.  S. 
1019;  Holliday  v.  St.  Leonard's,  Shoreditch,  8  Jur.  N.  S.  79;  s.  c.  11  C.  B. 
N.  S.  192;  Pickard  v.  Smith,  10  C.  B.  N.  S.  470;  Southampton  &  I.  Bridge 
Co.  v.  The  Local  Board  of  Health,  8  Ellis  &  Bl.  801  ;  Ruck  v.  Williams,  3  H. 

6  N.  308;  Whitehouse  v.  Fellowes,  10  C.  B.  N.  S.  765;  Brownlow  v.  The 
Metropolitan  Board,  8  Jur.  N.  S.  891  ;  s.  c.  13  C.  B.  N.  S.  768  ;  Jones  v.  The 
Mersey  Board,  11  Jur.  N.  S.  746. 

There  is  obviously  considerable  conflict  in  the  decisions  bearing  upon  the 
general  question  involved.  The  result  of  the  discussion  in  the  latest  case  before 
the  court  of  last  resort  in  England,  supra,  seems  to  be,  that  the  statute  is  the  only 
and  sufficient  warrant  for  creating  any  such  public  work  as  a  railway,  harbor,  or 
canal.  But  the  responsibility  of  those  to  whom  the  power  is  given,  depends 
upon  the  provisions  and  construction  of  the  statute ;  that  it  is  unimportant 
whether  the  grantee  of  the  power  be  a  natural  or  corporate  person,  the  respon- 
*431 


§  144.         DUTY  OF  COMPANIES  TO  PASSENGERS  AND  OTHERS.  607 

tiffs,  a  corporation,  were  empowered  by  act  of  parliament  to 
make  and  maintain  docks  /or  the  use  of  the  public,  and  to  take 
tolls  from  persons  using  them.  The  corporation  did  not,  nor 
did  its  individual  members,  derive  any  emolument  from  the 
tolls,  but  was  bound  to  apply  them  in  maintaining  the  docks, 
and  in  paying  a  debt  contracted  in  making  them.  The  corpora- 
tion had  the  usual  powers  of  appointing  water-bailiffs,  harbor- 
masters, and  servants,  by  whose  hands  the  duties  of  superin- 
tendence were  carried  out.  A  ship,  in  entering  one  of  the 
docks,  struck  against  a  bank  of  mud  left  at  its  entrance,  of  the 
existence  of  which  the  corporation  was  either  aware,  or  negli- 
gently ignorant.  The  ship  and  cargo  being  both  injured,  sepa- 
rate actions  were  brought  by  the  respective  owners.  It  was 
held,  affirming  the  judgment  of  the  Exchequer  Chamber,9  that 
as  long  as  the  docks  were  open  for  the  use  of  the  public,  the 
corporation  were  bound,  whether  they  received  the  tolls  for  pri- 
vate or  fiduciary  purposes,  to  take  care  that  the  docks  were 
navigable  without  danger,  and  consequently  that  they  were  lia- 
ble in  damages. 

8.  It  was  here  held,  that  in  construing  statutes  creating  bodies 
corporate,  such  as  the  plaintiffs,  the  legislature  must  be  consid- 
ered, unless  the  contrary  appears,  to  intend  that  the  corporate 
body  shall  have  the  same  liabilities  and  duties  as  are  imposed 
by  the  general  law  upon  private  persons  doing  the  same  things. 

sibility  in  either  ease  will  be  the  same ;  that  in  the  absence  of  all  special  statutory 
provision  to  the  contrary,  the  builders  of  such  works,  and  those  who  operate  the 
same  for  their  own  benefit,  or  that  of  others,  are  bound  to  see  that  they  are  con- 
structed with  reasonable  care  and  skill,  and  maintained  in  the  same  manner.  It 
was  at  one  time  supposed  the  grantee  of  such  a  power  might  excuse  himself  from 
all  responsibility  by  showing  good  faith  and  diligence  in  the  discharge  of  the 
public  duty  imposed  by  the  grant  of  the  power.  Sutton  v.  Clarke,  6  Taunt.  29, 
where  Chief  Justice  Gibbs  said  :  "  He  has  done  all  that  was  incumbent  on  him, 
having  used  his  best  skill  and  diligence."  But  it  has  since  been  held  that  this  is 
not  enough,  and  that  the  grantees  of  such  a  power  are  bound  to  conduct  them- 
selves in  a  skilful  manner,  and  to  do  all  that  any  skilful  person  could  reasonably 
be  required  to  do  in  such  a  case.  Jones  v.  Bird,  5  B.  &  A.  837. 
s  3  H.  &  Norm.  164,  4  Jur.  N.  S.  636. 


608  ARRANGEMENTS  BETWEEN  COMPANIES.         §  145. 

t 

SECTION    IV, 
Extent  of  the  Powers  and  Duties  of  Lessees  of  Railways. 

1.  Statement  of  the  points  in  an  important    2.  Lessees  of  railways  liable  for  their  own 
English  case.  acts,  and  for  many  acts  of  lessors. 

§  145.  1.  A  very  elaborate  and  important  case  upon  the  rela- 
tive rights  and  duties  of  the  lessors  and  lessees  of  railways  came 
before  the  court  of  C.  B.  in  June,  1851,  and  the  Exchequer 
Chamber  in  January,  1853.  The  importance  and  difficulty  of 
the  subject,  and  the  few  cases  upon  that  subject  which  have  yet 
arisen,  will  justify  an  extended  notice  of  the  points  decided  in 
the  court  of  last  resort.1  In  1836  a  company  (afterwards  called 
the  West  London  Railway  Company)  was  incorporated  by  act 
of  Parliament  for  the  making  of  a  railway  from  the  Kensington 
Canal  to  join  the  London  and  Birmingham  (afterwards  called 
the  London  and  Northwestern)  and  the  Great  Western  Rail- 
ways at  a  place  called  Holsden  Green,  and  certain  duties  were 
by  the  act  cast  upon  the  company  ;  and,  amongst  other  things,  it 
was  provided  that,  if  the  railway  should  be  abandoned,  or  should, 
after  its  completion,  cease  for  the  space  of  three  years  to  be  used 
as  a  railway,  the  land  taken  by  the  company  for  the  purposes  of 
the  act  should  revert  to  the  owners  of  the  adjoining  land. 

In  February,  1837,  the  West  London  Railway  Company  en- 
tered into  an  agreement  with  the  Great  Western  Railway  Com- 
pany, under  which  the  last-mentioned  company  bound  them- 
selves to  *  stop  certain  of  their  trains  at  a  point  where  their  rail- 
way intersected  the  West  London  Railway,  for  the  purpose  of 
transferring  passengers  and  goods  from  one  railway  to  the  other, 
and  to  stop  their  trains  for  the  purpose  of  meeting  correspond- 
ing trains  of  that  company,  in  the  manner  particularly  detailed 
in  the  deed. 

In  1840,  another  act,  3  &  4  Vict.  c.  105,  passed,  giving  further 
powers  to  the  West  London  Railway  Company  ;  the  thirty-fourth 
section,  reciting  the  agreement  of  February,  1837,  regulated  the 

1  The  West  London  Railw.  v.  The  London  &  N.  W.  Railw.,  18  Eng.  L.  & 
Eq.  481. 

*432 


§  145.  POWERS   AND  DUTIES   OF   LESSEES.  609 

mode  of  crossing,  until  the  plaintiffs'  railway  should  be  com- 
pleted ;  the  thirty-sixth  section  saved  the  plaintiffs'  right  under 
that  agreement ;  and  the  thirty-seventh  section  provided,  that  if 
the  plaintiffs'  line  was  abandoned,  or  ceased  to  be  used  as  a  rail- 
way for  three  years  after  its  completion,  then,  on  payment  or 
tender  to  them  by  the  Great  Western  Railway  Company  of  the 
purchase-money  of  the  piece  of  land  where  the  railways  crossed, 
the  said  land  should  vest  in  the  Great  Western  Railway  Com- 
pany. 

By  a  subsequent  act  (8  &  9  Yict.  c.  156),  reciting  that  "  it 
had  been  found  that  the  said  West  London  Railway  [which  it 
appeared  in  evidence  had  been  worked  with  passenger  trains  as 
well  as  with  goods  trains]  could  not  be  worked,  as  a  separate 
and  independent  undertaking,  with  advantage  to  the  proprietors 
thereof,  but  that  the  same  might  be  advantageously  worked  and 
used  in  connection  with  the  said  London  and  Birmingham  Rail- 
way and  the  said  Great  Western  Railway,  or  either  of  them,  by 
both  or  either  of  the  companies  to  whom  the  said  last-mentioned 
railways  belonged  ;  that  the  West  London  Railway  Company 
were  therefore  desirous  of  letting  the  said  railway  on  lease  to  the 
London  and  Birmingham  Railway  Company  ;  and  that  the  last- 
mentioned  company  were  willing  to  accept  such  lease,  subject 
to  certain  terms  and  conditions  which  had  been  mutually  agreed 
on  between  the  said  two  companies,"  —  the  West  London  Rail- 
way Company  was  authorized  to  lease  to  the  London  and 
Northwestern  Railway  Company  their  railway,  and  all  their 
rights,  powers,  and  privileges  in  relation  thereto,  —  subject  to 
the  provisions  of  the  act,  and  to  the  performance  of  the  condi- 
tions to  be  mentioned  in  such  lease. 

By  the  lease,  which  was  afterwards  executed  in  pursuance  of 
this  act,  the  London  and  Northwestern  Railway  Company  cove- 
nanted, amongst  other  things,  that  they  would  "  at  their  own 
expense,  during  the  continuance  of  the  lease,  efficiently  work 
and  repair  the  railway  and  works  thereby  demised,  and  indem- 
nify the  West  London  Railway  Company  against  all  liabilities, 
loss,  charges  and  expenses,  claims  and  demands,  whether  in- 
curred or  *  sustained  in  consequence  of  any  want  of  repair,  or  in 
consequence  of  not  working,  or  in  any  manner  connected  with 

VOL.  i.  39  *433 


610  ARRANGEMENTS   BETWEEN   COMPANIES.  §  145. 

the  working  of  the  same  railway  or  works  ;  but  the  West  Lon- 
don Railway  Company  shall  have  no  control  whatever  over  the 
working  or  management  by  the  London  and  Birmingham  (North- 
western) Railway  Company  of  the  West  London  Railway  or 
works.     It  was  held  :  — 

That  in  order  to  perform  their  covenant  to  work  efficiently, 
the  defendants  were  not  bound  under  all  circumstances  to  work 
the  line  for  passenger  traffic  ;  but  that,  if  as  much  gross  proceeds 
could  be  obtained  by  efficiently  working  the  railway  for  goods 
only,  as  for  passengers  only,  or  for  both  passengers  and  goods, 
the  covenant  was  well  performed,  —  Piatt,  B.,  Martin,  B.,  not 
concurring. 

That  the  agreement  of  February,  1837,  with  the  Great  West- 
ern Railway  Company,  was,  by  virtue  of  the  provisions  in  the 
leasing  act,  and  the  lease  itself,  transferred  to  the  defendants,  the 
lessees  ;  and,  consequently,  that  they  had  power  to  compel  the 
Great  Western  Railway  Company  to  stop  trains  on  their  line, 
pursuant  to  the  provisions  of  that  agreement.  That,  although 
the  defendants  had  power  to  stop  the  Great  Western  trains, 
they  were  not  bound  to  exercise  it,  necessarily,  as  a  part  of  the 
efficient  working  of  the  line  demised  ;  and  that  they  were  not 
bound  necessarily  to  work  the  demised  line  in  connection  with 
the  trains  on  the  Great  Western  Railway. 

That  there  was  no  covenant  in  the  lease  to  bind  the  defend- 
ants to  work  the  demised  line  in  connection  with  either  or  both 
their  own  or  the  Great  Western  Railway  ;  but  that  it  would  be 
for  the  jury  to  say  whether  or  not  they  could  practically  work 
the  line  efficiently,  without  some  connection  with  one  or  other 
of  those  railways. 

That,  for  the  purpose  of  considering  the  liability  of  the  defend- 
ants, they  were  not  to  be  treated  by  the  jury  as  if  they  were 
lessees  of  a  separate  and  independent  line,  having  no  control 
over  the  other  two  railways ;  but  that  the  covenant  to  work  the 
demised  line  efficiently,  must  be  construed  with  a  reference  to 
the  subject-matter,  and  the  character  of  the  defendants. 

That  the  obligation  of  the  defendants  under  their  covenant, 
was  not  limited,  as  decided  by  the  court  below,  to  the  indemni- 
fication of  the  plaintiffs  from  the  obligations  cast  upon  them  by 
their  acts  of  incorporation.     The  court  say,  in  substance  :  — 


§  145.  POWERS   AND   DUTIES   OF   LESSEES.  611 

If  this  railway  had  been  leased  to  a  simple  individual,  or  com- 
pany, without  any  connection  with  any  other  railway,  and  leased 
alone,  the  measure  of  efficient  working,  we  cannot  help  thinking, 
*  would  be  very  different  from  what  would  be  required  from  a 
company  whose  line  was  connected  with  it,  who  had  the  entire 
control  over  their  own  line,  and  were  armed  with  a  power  of 
adding  to  the  traffic  of  the  railway,  by  the  control  possessed  over 
another  line,  and  whose  capabilities  and  powers  in  this  respect 
were  reasons  which  disposed  parliament  to  permit  the  lease  to 
be  made  to  them. 

It  is  difficult,  indeed  almost  impossible,  to  define  the  precise 
nature  and  degree  of  efficient  working  which  such  a  company 
ought  to  apply,  under  this  covenant ;  not  so  difficult  to  say  that 
it  ought  to  be  different  and  greater  than  would  be  required  from 
a  company  or  an  individual  who  had  nothing  but  the  railway 
leased.  They  could  only  be  required  to  supply  convenient  ac- 
commodation and  attendance  for  the  receipt,  and  sufficient 
means  of  carriage,  of  such  goods  and  passengers  as  might  be 
offered  at  one  terminus,  or  any  intermediate  station,  to  be  carried 
to  the  other  terminus,  or  some  other  intermediate  station  ;  and 
this,  however  small  the  gross  receipt  might  be. 

But  that  would  be  too  small  a  measure  of  efficient  working, 
in  the  case  of  these  defendants,  who  have  the  power  of  supply- 
ing more  goods  and  passengers  themselves  by  facilitating  the 
transit  of  both  from  Holsden  to  the  Kensington  Terminus,  or 
Great  Western  Station,  or  by  increased  facilities  for  receiving 
them  at  the  Kensington  Terminus,  by  arrangements  within  their 
power,  without  any  serious  injury  to  their  own  concern. 

They  are  certainly  not  bound  to  make  a  sacrifice  of  their  own 
concerns  for  the  purpose  of  efficiently  working  this  line  so  as  to 
produce  the  greatest  profit  to  the  plaintiffs  and  themselves. 

The  covenant  must  have  a  reasonable  construction  in  this 
respect.  But  they  are,  we  think,  bound  to  do  more  than  a  les- 
see of  merely  the  railway  in  question  would  do,  unconnected 
with  any  other. 

2.  It  seems  to  be  regarded  as  settled  that  the  persons  or  cor- 
poration who  come  into  the  use  of  a  railway  company's  powers 
and  privileges,  are  liable  for  their  own  acts  while  continuing 

*434 


612  ARRANGEMENTS  BETWEEN  COMPANIES.        §  146. 

such  use,  and  also  for  the  continuance  permissively  of  any  wrong 
which  had  been  perpetrated  by  such  company  upon  land-owners 
or  others,  by  means  of  permanent  erections,  which  still  remain  in 
the  use  of  their  successors.2  Thus  it  has  been  held  that  the 
lessees  of  a  *  railway  are  liable  to  a  penalty,  under  the  statute, 
for  not  having  a  bell  upon  their  engines,  and  not  ringing  it,  as 
required  by  the  statute.3  But  the  lessees  of  a  railway  are  not 
liable  for  the  acts  of  the  servants  of  the  lessors.4 


SECTION    V. 
Contracts  between  different  Companies  regulating  the  Traffic. 

1.  Such  contracts  generally  held  valid  and  I  2.  Arrangements  to  avoid  competition  valid, 
binding. 

§  146.  1.  It  seems  in  general  to  have  been  considered,  that 
contracts  between  different  connecting  companies,  with  a  bond 
fide  view  to  regulate  traffic,  in  a  reasonable  and  just  manner, 
were  legal  and  binding.1     But  when  it  is  considered  that  these 

8  In  regard  to  the  construction  of  contracts  between  different  companies  for 
the  mutual  use  of  each  other's  line,  or  the  line  of  one  road  by  the  other,  tolls, 
&c,  see  The  Lancashire  &  Yorkshire  Railw.  v.  The  East  L.  Railw.,  8  Eng. 
L.  &  Eq.  564;  s.  c.  reversed  in  Exchequer  Ch.,  25  Eng.  L.  &  Eq.  465;  and 
affirmed  H.  Lords,  36  Eng.  L.  &  Eq.  34.  It  was  held  in  a  late  Scotch  case,  on 
appeal  in  the  House  of  Lords,  that  under  an  act  of  parliament  requiring  one 
company  to  accept  a  lease  of  and  operate  the  other's  road,  so  soon  as  it  was  in 
readiness,  the  lessees  were  bound  to  accept  any  reasonable  portion  of  the  road, 
so  soon  as  completed,  it  being  such  a  portion  as  might  be  worked  with  advantage. 
Edinburgh  &  G.  Railw.  v.  Stirling  &  D.  Railw.,  22  Law  T.  26 ;  Brown  v.  The 
Cayuga  &  Susquehanna  Railw.,  2  Kernan,  486. 

3  Linfield  v.  Old  Colony  Railw.,  10  Cush.  562. 

4  "Walford  on  Railways,  184,  citing  two  cases  not  reported. 

1  Shrewsbury  &  Birm.  Railw.  v.  London  &  N.  W.  Railw.,  9  Eng.  L.  &  Eq.  394. 
Lord  Campbell  says  here,  That  if  the  object  of  the  contract  were  to  create  a 
monopoly,  and  to  deprive  the  public  of  all  benefit  of  competition,  it  might  be 
illegal,  but  an  agreement  that  one  company  shall  not  interfere  or  compete  with 
the  other,  is  no  more  illegal  than  a  contract  by  which  one  tradesman  or  me- 
chanic agrees  not  to  continue  his  business  in  a  particular  place.  Same  case  in 
Chancery,  before  Lord  Cottenham,  2  Mac.  &  Gordon,  324,  where  a  similar  view 
is  taken  of  the  legality  of  the  contract.  Lord  Langdale,  M.  R.,  in  Colman  v. 
The  Eastern  Counties  Railw.,  4  Railw.  C,  513. 
*435 


§  147.  WHAT   CONSTITUTES   A   PERPETUAL   CONTEACT.  613 

companies  have  to  a  very  great  extent  a  monopoly  of  the  traffic 
and  travel  of  the  country,  the  power  to  regulate  fares  and  freight 
by  arrangement  between  the  different  companies  is  certainly  one 
very  susceptible  of  abuse.  But  there  is  ordinarily  very  little 
danger  that  they  will  willingly  incur  the  serious  reprobation  of 
public  opinion.  And  it  has  sometimes  been  doubted  whether 
contracts,  whereby  one  railway  company  seeks  to  assume  the 
entire  business  of  other  companies,  affording  them  a  guaranty  in 
regard  to  stock  and  profits,  or  either,  could  be  regarded  as  com- 
ing within  the  fair  *  interpretation  of  the  English  general  stat- 
utes, allowing  one  company  to  contract  for  running  upon  the 
track  of  other  companies,  for  tolls,  and  so  could  be  held  valid  by 
the  courts  of"  that  country,  either  in  law  or  equity.2  But  some 
of  the  later  cases  seem  to  sustain  such  contracts.3 

2.  There  is  no  principle  of  public  policy  which  renders  void 
a  traffic  arrangement  between  two  lines  of  railway  for  the  pur- 
pose of  avoiding  competition.  And  if  the  arrangement  embrace 
the  division  of  the  net  earnings  of  both  companies  in  certain 
definite  proportions,  the  court  will  not  interfere  upon  the  ground 
that  one  company  may  not  adventure  its  profits  upon  the  chances 
of  the  earnings  of  another  company.4  And  it  is  no  valid  objec- 
tion that  such  division  is  based  upon  the  experience  of  the  result 
of  past  traffic.4 

SECTION    VI. 

What  is  requisite  to  constitute  a  perpetual  Contract  between 
different  Railway  Companies. 

§  147.  Where  in  the  charter  of  a  railway  company  a  right  is 
reserved  to  the  legislature  to  allow  other  railways  to  connect 
with  the  former,  upon  such  terms  as  shall  be  reasonable,  com- 
plying with  the  established  regulations  of  such  company  upon, 
the  subject,  and  in  pursuance  of  such  reservation  a  junction  is 
made  by  a  second  railway  company  with  the  first,  which,  in  faith 

s  Simpson  v.  Denison,  13  Eng.  L.  &  Eq.  359. 

3  Ante,  §  142. 

4  Hare  v.  London  &  N.  W.  Railw.,  2  Johns.  &  H.  80 ;  s.  c.  7  Jur.  N.  S.  1145 ; 
post,  §  148. 

♦436 


614 


ARRANGEMENTS  BETWEEN  COMPANIES. 


§148. 


of  such  connection,  proceeds  to  make  expensive  and  permanent 
arrangements  for  the  accommodation  of  the  enlarged  business 
thus  brought  upon  its  track,  it  was  held,  that  this  imposed  no 
obligation  upon  the  second  company  to  continue  this  connection 
permanently.  And  also  that  the  second  company  might  law- 
fully obtain  an  extension  of  their  own  road,  so  as  to  do  their 
own  business,  without  continuing  the  connection.1 

SECTION    VII. 

Contracts  by  Railways  ultra  vires,  and  Illegal. 


1 .  Contracts  to  make  erections  not  authorized 

bij  their  charter. 

2.  Contracts  to  indemnify  other  companies 

against  expense. 

3.  Contracts  to  divide  profits. 

4.  Illustration  of  the  doctrine  ultra  vires. 

5.  How  far  railways  may  accept  bills  of  ex- 

change. Railway  companies  not  einpoiv- 
ered  to  make  bills  and  notes  except  from 
necessity. 

6.  Contracts  ultra  vires  cannot  be  specifi- 

cally enforced  against  the  directors. 


7 .  Money  unlawfully  borrowed  company  must 

refund. 

8.  How  far  acts  ultra  vires  confirmed  by 

acquiescence. 

9.  Company  not  restrained  from  making 
unlawful  payments  on  the  ground  of 
policy. 

10.  Decision  rests  on  no  safe  grounds. 

11.  It  seems  too  much  like  paying  black  mail 

to  buy  peace. 


§  148.  1.  It  has  been  considered,  that  a  contract  by  a  railway 
company  with  the  corporation  of  a  city,  by  which  the  company 
bind  themselves  to  erect  a  bridge  and  other  accessory  works 
across  a  river,  at  a  point  where,  by  their  charter,  they  are  not 
authorized  *  to  pass,  and  to  do  this  by  a  definite  time,  and  in 
default  to  pay  one  thousand  pounds,  as  liquidated  damages, 
such  works  being,  without  an  act  of  parliament,  a  nuisance,  is 
an  illegal  contract,  and  equally  so  notwithstanding  a  stipulation 
that  the  company  shall  in  the  mean  time  exert  themselves  to 
obtain  an  act  authorizing  the  erections.1 

2.  And  where  the  chairman  of  the  Southeastern  Railway 
Company  promised  the  managing  committee  of  a  proposed  rail- 
way company,  that  in  consideration  of  their  not  abandoning 
their  project,  but  pursuing  it  in  parliament,  the  Southeastern 

1  Boston  &  Lowell  Railw.  v.  The  Boston  &  Maine  Railw.,  5  Cush.  375. 
1  The  Mayor  of  Norwich  v.  The  Norfolk  Railw.,  30  Eng.  L.  &  Eq.  120. 
*437 


§  148.  CONTRACTS   ULTRA   VIRES.  615 

Railway  Company  would,  in  case  of  their  bill  being  rejected, 
insure  the  company,  of  which  they  were  the  managing  commit- 
tee, against  all  loss,  and  would  pay  all  expenses  incurred  by 
them  in  endeavoring  to  obtain  the  act ;  and  the  Southeastern 
Railway  Company  were  authorized,  by  their  acts,  to  apply  their 
funds  in  certain  ways,  not  including  this  :  it  was  held 2  that  the 
agreement  was  void,  as  it  was  an  agreement  made  by  contract- 
ing parties  (who  must  be  presumed  to  know  the  powers  of  the 
defendants'  company,  by  their  acts  of  parliament,  which  are  pub- 
lic acts)  that  the  company  should  do  an  act  which  was  illegal, 
contrary  to  public  policy  and  the  provisions  of  the  statutes.3 

3.  And  a  contract  by  which  one  railway  agrees  to  give  up  to 
another  railway  a  part  of  its  profits,  in  consideration  of  securing 
a  portion  of  the  profits  of  the  other  company,  is  illegal,  and  ultra 
vires.4 

4.  The  rule  laid  down  upon  this  subject  by  a  distinguished 
English  judge,  on  a  recent  occasion  in  the  House  of  Lords,5  is 
perhaps  as  fair  and  full  a  definition  of  the  doctrine  as  can  be 
made.  "  There  can  be  no  doubt  that  a  corporation  is  fully  ca- 
pable of  binding  itself  by  any  contract  under  its  common  seal  in 
England,  and  without  it  in  Scotland,  except  where  the  statutes  by 
which  it  is  located  or  regulated  expressly  or  by  necessary  implica- 
tion prohibits  such  contracts  between  the  parties.  Primd  facie  all 
its  contracts  are  valid,  it  lies  on  those  who  impeach  any  contract 
to  make  out  that  it  is  avoided.  This  is  the  doctrine  of  ultra  vires, 
and  it  is  no  doubt  sound  law,  though  the  application  of  it  to  the 
facts  of  each  particular  case  has  not  always  been  satisfactory  to 
my  mind."  His  lordship  here  declares  that  it  would  not  be 
ultra  vires  for  a  company  wishing  to  alter  one  of  its  branches, 
and  about  to  apply  to  parliament  for  authority  to  do  so,  to  enter 

8  McGregor  v.  The  Official  Manager  of  the  Deal  &  Dover  Railw.,  16  Eng. 
L.  &  Eq.  180,  in  Exchequer  Chamber.  See  also  East  Anglian  Railways  Co. 
v.  Eastern  Counties  Railw.,  7  Eng.  L.  &  Eq.  505,  where  the  same  question,  in 
effect,  is  determined.     Ante,  §  16. 

3  Ante,  §  56,  n.  3. 

4  Shrewsbury  &  Birmingham  Railw.  v.  London  &  Northwestern  Railw.,  House 
of  Lords,  May,  1857;  29  Law  Times,  186. 

6  Lord  Wensleydale,  in  the  Scottish  Northeastern  Railw.  Company  v.  Stewart, 
5  Jur.  N.  S.  607. 


616  ARRANGEMENTS  BETWEEN  COMPANIES.         §  148. 

into  a  contract  for  land  which  would  be  necessary  for  the  pur- 
pose if  they  should  obtain  the  act. 

5.  The  question  how  far  a  railway  company,  without  special 
grant  of  power  for  that  purpose,  may  accept  bills  of  exchange,  is 
very  carefully  examined  and  thoroughly  discussed,  both  by  court 
and  counsel,  in  a  recent  English  case.6    It  seems  to  be  there  con- 

8  Bateman  v.  Mid- Wales  Railw.  Company,  12  Jur.  N.  S.  453.  The  language 
of  Crompton,  J.,  in  Chambers  v.  Manchester  &  Milford  Railw.  Co.,  10  Jur.  N.  S. 
700,  seems  to  place  the  question  upon  its  true  basis. 

"  The  law  as  laid  down  by  Parke,  B.,  in  the  South  Yorkshire  Railw.  &  River 
Dun  Company  v.  The  Great  Northern  Railw.  Company,  does  not  appear  to  be 
questioned,  and  seems  to  be  applicable  to  the  present  case.  '  Corporations, 
which  are  creations  of  the  law,  are,  when  the  seal  is  properly  affixed,  bound 
just  as  individuals  are  by  their  own  contracts,  and  as  much  as  all  the  members 
of  a  partnership  would  be  by  contract  in  which  all  concurred.'  This  is  un- 
doubtedly true  of  corporations  generally ;  but  as  Mr.  Lush  has  observed,  rail- 
way corporations  are  the  creatures  of  an  act  of  parliament ;  and  the  question 
is,  how  far  provision  has  been  made  for  conferring  upon  them  borrowing  powers, 
which  are  said  to  have  been  exercised  in  the  present  case.  '  But,'  proceeds 
Parke,  B.,  '  where  a  corporation  is  created  by  act  of  parliament  for  particular 
purposes,  with  special  powers,  then  indeed  another  question  arises  ;  their  deed, 
though  under  their  corporate  seal,  and  that  regularly  affixed,  does  not  bind 
them,  if  it  appear  by  the  express  provisions  of  the  statute  creating  the  corpora- 
tion, or  by  necessary  and  reasonable  inference  from  its  enactments,  that  the  deed 
was  ultra  vires,  —  that  is,  that  the  legislature  meant  that  such  a  deed  should  not 
be  made.'  This,  as  it  appears  to  me,  touches  the  very  question  before  us,  and, 
moreover,  seems  to  convey  the  notion  that  directors  of  a  railway  company  are  of 
the  nature  of  special  rather  than  general  agents  of  the  company  they  represent. 
They  have  the  custody  of  the  seal  of  the  company,  but  they  have  not  the  power 
to  affix  it  to  instruments  which  the  legislature  has  declared  to  be  ultra  vires ; 
and  should  this  be  done,  the  company  are  not  bound."  .... 

"  These  bonds,  therefore,  seem  in  effect  to  amount  to  an  account  stated,  and 
a  promise  to  pay,  under  seal ;  and,  so  long  as  they  are  used  for  the  purpose  for 
which  they  were  originally  intended,  it  may  be  that  there  is  nothing  objection- 
able in  them.  But  here  the  bonds  are  issued  by  the  directors  for  the  purpose  of 
raising  money  to  discharge  liabilities  into  which  the  plaintiff  has  entered  on  be- 
half of  the  company,  of  which  he  was  chairman  ;  and  this  is,  to  say  the  least  of 
it,  an  indirect  mode  of  borrowing,  and  beyond  the  powers  conferred  upon  the 
company  under  their  act.  The  point  was  also  put  to  us  upon  the  argument 
whether  the  prohibition  to  borrow  was  to  be  held  to  extend  to  the  raising  of 
small  sums  for  the  immediate  necessities  of  a  newly  started  company ;  and  to 
this,  we  think,  it  was  well  answered,  that  if  once  a  company  be  permitted  to 
overdraw  one  hundred  pounds,  there  would  be  no  impediment  to  their  doing  so 
to  any  extent  to  which  their  credit  would  reach.    I  am  therefore  of  opinion  that 


§  148.  CONTRACTS   ULTRA   VIRES.  617 

sidered,  that  unless  the  corporation  is  a  trading  company,  as  the 
Bank  of  England  or  the  East  India  Company,  there  is  no  pre- 
sumptive power  to  accept  bills  of  exchange.  In  the  case  of  rail- 
way corporations,  created  for  a  special  purpose,  there  is  no  pre- 
sumptive power  either  to  borrow  money,  or  to  issue  or  accept 
bills  of  exchange  for  the  purpose  of  negotiation  in  the  market. 
The  rule  is  thus  stated  by  one  of  the  judges  in  the  case  last 
cited,  speaking  of  trading  corporations.  "  Such  a  corporation 
may,  in  some  cases,  bind  itself  by  promissory  notes  and  bills  of 
exchange But  a  corporation  will  not  have  these  extraordi- 
nary powers,  unless  the  nature  of  the  business  in  which  it  is  en- 
gaged raises  a  necessary  implication  of  their  existence." 

6.  Contracts  ultra  vires,  entered  into  by  the  directors,  and 
which  are  not  binding  upon  the  company,  cannot  be  specifically 
enforced  against  the  directors,  nor  can  the  directors  be  decreed 
by  the  court  to  make  good  their  representations.7 

7.  A  corporation  having  no  power  to  lend,  made  a  loan  to  a 
company  having  no  power  to  borrow.  The  borrowers  were  aware 
of  those  facts.  They  bought  a  canal  with  the  money  ;  but  that 
was  set  aside,  and  the  purchase-money  ordered  to  be  refunded. 
The  loaning  company  sought  a  refunding  of  the  money  loaned 
by  them,  with  the  interest,  out  of  the  refunded  purchase-money. 
It  was  held  they  were  entitled  to  a  decree  accordingly.8  But  the 
lender  of  money  to  a  company  having  no  power  to  borrow,  can- 
not compel  the  company  to  refund  the  money,  unless  it  has  been 
bond  fide  applied  to  the  purposes  of  the  company.9 

8.  Where  part  of  a  contract  only  is  ultra  vires  of  the  company, 
a  court  of  equity  will  restrain  that  portion  only.lor    Where  there 

these  bonds  are  void,  and  that  the  plaintiff  is  not  entitled  to  recover  upon 
them." 

7  Ellis  v.  Coleman,  25  Barb.  662. 

8  Ernest  v.  Croysdell,  6  Jur.  N.  S.  740. 

9  Troup  in  re,  29  Beav.  353  ;  Hoare  ex  parte,  30  Id.  225. 

10  Maunsell  v.  Midland  Great  Western  (Ireland)  Railw.  Co.,  1  H.  &  M.  130  ; 
s.  c.  9  Jur.  N.  S.  660.  It  was  here  held,  that  an  agreement  to  contribute  to  the 
parliamentary  deposit  recmired  on  bills  promoted  by  another  company  is  ultra 
vires.  So  is  an  agreement  to  take  shares  in  the  future  extension  of  another 
company.  So  also  is  an  agreement  to  make  traffic  regulations  applicable  to 
future  extensions.  But  no  such  agreement  is  ultra  vires  if  its  validity  is  ex- 
pressly made  dependent  upon  the  sanction  of  parliament.     But  where  part  of 


618  ARRANGEMENTS  BETWEEN  COMPANIES.         §  148. 

is  a  defect  of  capacity  in  the  company  to  do  the  act,  the  power 
cannot  be  created  by  the  express  agreement  of  the  shareholders  ; 
nor  can  it  be  presumed  from  any  extent  of  acquiescence.  But 
where  only  certain  formalities  are  required  to  the  valid  execution 
of  the  act,  as  the  consent  of  a  general  meeting,  that  will  be  pre- 
sumed from  acquiescence.11  But  where  dissentient  members 12 
were  allowed  to  retire  by  the  resolution  of  a  general  meeting,  it 
was  held  the  other  members  could  not  be  allowed  to  question 
its  regularity  and  validity,  after  an  acquiescence  of  twenty  years, 
although  ultra  vires. 

9.  Directors  of  an  insurance  company  offered  to  pay  losses 
caused  by  the  explosion  of  gunpowder,  although  expressly  ex- 
cepted from  the  risks  assumed  by  the  policy,  at  the  same  time 
not  admitting  any  legal  liability  to  do  so.  On  a  bill  by  a  share- 
holder to  restrain  the  directors  from  doing  so,  it  appearing  that 
it  was  usual  and  advantageous  for  companies  to  do  so,  although 
not  strictly  responsible  for  the  loss  :  held,  that  this  was  a  mode 
of  carrying  on  the  business  with  which  the  court  could  not  in- 
terfere.13 

10.  This  is  a  most  remarkable  decision,  but  more  remarkable 
for  the  reasons  and  grounds  upon  which  it  is  placed.  The  fact 
that  the  unlawful  payments  proposed  to  be  made  were  prudent 
and  politic,  is  nothing  more  than  may  be  urged  in  favor  of  all 
proposed  illegal  diversion  of  the  funds  of  a  company.  It  is  al- 
ways proposed  thereby  to  advance  the  interests  of  the  company, 
and  consequently  the  dividends  to  the  shareholders.  It  is  im- 
possible to  suppose  that  any  such  principle  can  ultimately  main- 
tain its  ground  in  the  English  courts  of  equity. 

11.  The  subsequent  cases  seem  to  feel  that  all  secure  ground 
to  rest  upon  is  taken  from  under  them.     It  is  said  in  one  case  14 

an  entire  arrangement  between  two  companies,  the  parts  of  which  are  depend- 
ent upon  each  other,  are  illegal,  or  ultra  vires,  a  court  of  equity  will  restrain  the 
execution  of  every  portion  of  the  arrangement.  Hattersley  v.  Shelburne,  7  Law 
T.  N.  S.  650. 

11  British  Provident  Life  Ins.  Co.,  ex  parte  Grady,  9  Jur.  N.  S.  631. 

12  Brotherhood  in  re,  31  Beav.  365.  A  restriction  upon  the  liability  of  the 
shareholders  for  bills  drawn  by  the  company  will  not  effect  the  responsibility  of 
the  company.     State  Fire  Ins.  Co.,  8  L.  T.  N.  S.  146. 

13  Taunton  v.  Royal  Ins.  Co.,  2  H.  &  M.  135  ;  s.  c.  10  Jur.  N.  S.  291. 

14  Gregory  v.  Patchett,  10  Jur.  N.  S.  1118. 


§  148«.  CONTRACTS   ULTRA   VIRES.  619 

that  in  matters  strictly  relating  to  the  internal  management  of 
the  company,  even  though  not  strictly  within  the  terms  of  the 
constitution  of  the  company,  the  court  will  not  interfere.  But 
it  is  here  added,  if  the  matters  complained  of  are  plainly  beyond 
the  powers  of  the  company,  and  are  inconsistent  with  the  objects 
for  which  the  company  was  constituted,  the  court  will  interfere, 
at  the  instance  of  the  minority,  to  prevent  the  act  complained  of 
from  being  carried  out.  If  this  is  intelligible  to  others,  or  rec- 
oncilable with  good  sense  and  good  law,  it  certainly  passes  our 
comprehension,  and  we  can  only  say  that  we  should  not  expect 
it  to  be  long  maintained  anywhere.  It  is  nothing  more  or  less 
than  paying  black  mail  to  buy  peace,  and  if  public  companies 
can  do  that  with  funds  they  hold  in  trust,  it  may  be  as  well  for 
courts  of  equity  not  to  attempt  to  define  what  they  may  or  may 
not  do. 

§  148  a.  The  following  points,  decided  by  a  court  of  learning 
and  experience,  in  regard  to  the  rights  of  railway  corporations  in 
one  state  to  enter  into  permanent  arrangements  with  similar 
corporations  in  other  states,  with  our  own  comments  upon  it, 
as  published  in  the  American  Law  Register,1  we  deem  of  suffi- 
cient importance  as  illustrating  some  of  the  doctrines  discussed 
in  the  preceding  section,  to  be  here  repeated.  The  opinion  of 
Judge  Store?',  at  length,  will  be  found  in  the  American  Law 
Register,2  and  will  repay  careful  reading. 

1.   Tlie  power  of  a  receiver  to  sue  in  the  name  i  3.  Statement  of  the  contract  and  ground  of 


of  the  corporation. 
Foreign  railway  corporation  acquired  no 
prerogative  rights  by  leasing  a  portion  of 
the  track  of  a  domestic  railway. 


holding  it  void,  as  being  ultra  vires. 

Further  reasons  why  such  contract  cannot 
be  specif  'catty  performed  here. 

3.  Comments  upon  the  preceding  proposi- 
tions. 


Superior  Court  of  Cincinnati.  Ohio  and  Mississippi  Railroad 
Company  v.  Indianapolis  and  Cincinnati  Railroad  Company. 

1.  A  receiver  appointed  by  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  Ohio,  to  take  possession  of  a 
railroad  and  its  effects,  may  sue  in  this  court,  upon  a  contract 
made  by  that  corporation  in  the  corporate  name  of  the  railroad, 
without  disclosing  in  the  petition  his  own  name  as  receiver. 

1  Vol.  5,  N.  S.,  733.  8  Vol.  5,  N.  S.,  733-744. 


620  ARRANGEMENTS  BETWEEN  COMPANIES.       §  148  a. 

2.  A  foreign  corporation,  having  no  charter  from  the  state  of 
Ohio,  authorizing  it  to  construct  and  operate  a  railroad  in  this 
state,  cannot,  by  a  transfer  of  a  portion  of  a  railroad  already  con- 
structed in  the  state  by  legal  authority,  acquire  a  right  to  use 
and  operate  such  railroads  within  this  state. 

3.  The  plaintiffs,  being  authorized  to  construct  and  operate  a 
railroad  from  Cincinnati  to  Vincennes,  and  the  defendants,  be- 
ing authorized  to  construct  and  operate  a  railroad  from  Indian- 
apolis to  Lawrenceburg,  of  a  different  gauge,  entered  into  a 
contract  whereby  the  defendants,  in  consideration  of  being  al- 
lowed to  lay  a  third  rail  on  the  road  of  the  plaintiffs,  to  furnish 
motive  power  for  hauling  the  cars  of  the  defendants  on  that  part 
of  the  road,  agreed,  among  other  things,  to  lend  to  the  plaintiffs 
$30,000,  for  the  purpose  of  erecting  a  depot  for  the  plaintiffs  in 
Cincinnati,  to  become  the  property  of  the  plaintiffs  at  the  expi- 
ration of  the  contract ;  to  form  no  connections  at  or  beyond 
Lawrenceburg  prejudicial  to  the  plaintiffs  ;  and  to  give  the  plain- 
tiffs exclusive  control  of  the  employees  of  the  defendants  while 
on  the  road  of  the  plaintiffs.  Held,  on  the  construction  of  the 
charters  of  the  plaintiffs  and  defendants,  that  such  contract  was 
beyond  the  competency  of  the  contracting  parties,  and  was  void. 

4.  The  contract  also  provided,  that  the  defendants  should 
have  the  use  of  a  depot  and  certain  grounds  in  Cincinnati  for 
unloading  goods  and  lumber,  for  thirty  years.  Held,  that  this 
created  an  easement  in  the  land,  and  was,  in  connection  with  the 
laying  and  keeping  up  the  third  rail,  in  substance  a  lease,  which 
the  plaintiffs  had  no  authority  to  make,  and  that  it  being  for 
more  than  three  years,  was  also  invalid  under  the  statute  of 
frauds,  for  the  want  of  legal  acknowledgment.  Held,  als/>,  that 
the  defendants  having  as  a  foreign  corporation  no  right  to  accept 
a  lease  of  a  railroad  in  Ohio,  the  plaintiffs  could  not  have  had  a 
specific  performance  of  the  agreement,  the  remedies  of  the  par- 
ties not  being  mutual.3 

3  We  can  see  no  good  ground  to  question  the  soundness  of  the  foregoing 
opinion  ;  but  it  seems  to  us  that  the  case  exhibits  in  a  strong  light  the  embar- 
rassments constantly  resulting  from  having  railway  corporations  restricted  in 
their  corporate  functions  to  the  limits  of  state  lines.  It  would  certainly  seem 
that  there  is  far  more  necessity  and  propriety  in  having  all  the  railway  corpora- 
tions in  the  country  possess  a  national  character,  than  there  is  in  giving  the 


§  149.      COMPANIES  EXONERATED  FROM  CONTRACTS.        621 

SECTION    VIII. 

Companies  exonerated  from  Contracts,  by  Act  of  the  Legislature. 

§  149.  It  seems  to  be  conceded  that  a  railway  company  may 
plead  a  subsequent  act  of  the  legislature,  in  bar  of  the  perform- 
ance *  of  their  covenant  or  contract.  But  it  will  afford  no  bar, 
unless  the  act  either  expressly,  or  by  clear  implication,  renders 
the  duty  of  the  contract  unlawful  or  comes  in  conflict  with  it.1 

same  character  to  all  the  banks  of  the  country,  which  has  been  already  practi- 
cally effected  by  means  of  discriminating  taxation.  There  is  every  reason  to 
regard  railways  as  national  institutions,  in  almost  every  sense  in  which  they 
possess  a  public  character,  or  perform  public  service,  with  the  single  exception 
of  intercommunication,  which  is  mainly  of  local  and  state  concern. 

1.  As  one  of  the  wonderful  advancements  of  military  operations  in  modern 
times,  by  which  railways  have  wrought  a  complete  change  in  the  conduct  of  war, 
and  have  become  an  indispensable  necessity,  they  are  entirely  of  a  national 
character,  so  much  so  as  to  exclude  all  state  control  in  times  of  war  or  civil 
commotion. 

2.  In  regard  to  postal  communication,  which  has  been  regarded  as  exclusively 
of  a  national  character,  since  the  early  and  palmy  days  of  the  Persian  monarchy, 
where  public  posts  are  said  to  have  originated,  railways  must  also  be  regarded  as 
an  indispensable  necessity.  For  if  we  admit  the  right  of  state  control  over  all 
or  any  considerable  portion  of  the  railways  in  the  country,  it  will  place  all  postal 
communication  at  the  mercy  and  good  will  of  state  authority,  which  any  one  must 
see  is  wholly  inadmissible. 

We  discussed  the  rights  of  railway  corporations  in  regard  to  acquiring 
land  and  other  prerogative  rights  in  adjoining  states,  without  the  action  of  the 
legislature,  in  a  case  in  Vermont,  many  years  since,  when  we  came  to  the  con- 
clusion that  no  such  prerogative  rights  could  be  acquired  out  of  the  state  of  the 
charter,  except  by  legislative  act.  State  v.  B.  C.  &  M.  Railw.,  25  Vt.  R.  433. 
This  will  not  preclude  such  corporations  from  acquiring  the  title  of  land  out  of 
the  state,  by  voluntary  contract,  or  entering  into  any  other  contract,  of  the 
ordinary  character  of  contracts  between  natural  persons,  but  it  will  not  justify 
taking  land  compulsorily,  or  operating  a  railway  and  taking  tolls,  &c. 

1  Wynn  v.  The  Shropshire  Union  Railw.  &  Canal,  5  Exch.  420;  Stevens  v. 
South  Devon  Railw.,  12  Eng.  L.  &  Eq.  229.  But  where  one  was  induced  to 
give  lands  to  a  railway  company,  or  subscribe  for  stock,  and  the  essential  in- 
ducement to  make  the  contract  was  that  the  company  should  construct  their 
road  within  some  definite  time,  the  extension  of  time  for  the  construction  of  the 
road,  by  act  of  the  legislature,  will  not  exonerate  the  company  from  their  obli- 
gation to  such  person.     Henderson  v.  Railw.  Company,  1 7  Texas  R.  560. 

*438 


622 


ARRANGEMENTS   BETWEEN   COMPANIES. 


§150. 


SECTION    IX, 


Width  of  Gauge. — Junction  with  other  Roads. 


1 .  Where  the  act  requires  broad  gauge,  does 

not  prohibit  mixed  gauge. 

2.  Permission  to  unite  with  other  road,  signi- 

fies a  road  de  facto. 

3.  Equity   will    sometimes    enjoin    company 

against  changing  gauge. 


Contract  to  make  gauge  of  the  companies 
the  same,  although  contrary  to  law  of 
state,  at  its  date,  may  be  legalized  by 
statute. 


§  150.  1.  Where  the  company's  special  act  required  them  to 
lay  down  a  railway  of  such  gauge  and  construction  as  to  be 
worked  in  connection  with  another  company  named  (the  broad 
gauge),  a  court  of  equity  declined  to  interfere,  by  injunction, 
when  the  company  were  laying  down  part  of  the  line  with 
double  tracks  of  the  mixed  gauge,  there  being  no  prohibition  in 
the  act  against  such  a  construction,  the  broad  gauge  being  all 
which  was  required  by  the  act.1 

2.  Where  the  act  of  incorporation  gav.e  the  company  the  right 
to  construct  a  road  in  a  particular  line,  and  also  required  them 
to  purchase  a  former  railway  along  the  same  route,  and  gave 
them  the  right  to  connect  "  their  road  with  any  road  legally 
authorized  to  come  within  the  limits  of  the  city  of  Erie,"  it  was 
held  that  this  right  extended  equally  to  the  road  purchased  or 
built  by  them,  and  that  they  had  the  right  to  connect  with  any 
other  railway  in  the  actual  use  of  another  company  in  Erie, 
without  inquiry  whether  such  company  were  in  the  legal  use  of 
their  franchises  at  the  time  or  not.  That  is  a  question  which 
cannot  be  inquired  into  in  this  collateral  manner.2 

3.  Where  two  railway  companies  agree  to  operate  their  roads 
in  connection,  between  certain  points,  if  one  of  the  companies 
*  changes  its  gauge,  so  as  to  break  up  the  connection  contem- 
plated, an  injunction  will  be  granted  to  enforce  the  contract.3 

1  Great  Western  Railw.  v.  Oxford,  Worcester,  &  Wolverhampton  Railw.,  10 
Eng.  L.  &  Eq.  297. 

2  Cleveland,  Painsville,  &  Ashtabula  Railw.  v.  The  City  of  Erie,  27  Penn. 
St.  380. 

3  Columbus,  Piqua,  &  Ind.  Railw.  v.  Ind.  &  Belief.  Railw.,  5  McLean's  C. 
C.  R.  450. 

*439 


§  150.  WIDTH   OF   GAUGE.  —  JUNCTION   OF  -RAILWAYS.  623 

4.  A  contract  entered  into  by  railway  companies  to  make  the 
gauge  of  both  the  companies  the  same,  is  not  illegal,  although 
this  be  contrary  to  the  law  of  one  of  the  states,  if  the  contract 
appear  to  have  been  made  with  reference  to  an  alteration  of  the 
powers  of  the  company,  in  that  respect,  and  that  such  alteration 
was  procured  before  any  part  of  the  track  was  laid.3 


NOTES. 


Note  I.  to  §  133,  ante,  p.  544. 

The  following  very  important  case  we  have  deemed  of  sufficient  importance 
to  insert  here  at  length :  — 

The  State  of  Maryland  v.  The  Baltimore  and  Ohio  Railroad  Company. 
The  Baltimore  and  Ohio  Railroad  Company  v.  The  State  of  Maryland. 

Distinction  between  Passengers  and  Strangers.  —  Railway  companies  owe  a 
higher  degree  of  watchfulness  and  care  to  those  sustaining  the  relation  of  pas- 
sengers, than  to  mere  strangers  having  no  fiduciary  relations  with  the  company. 

Distinction  further  defined.  —  In  the  former  case  the  utmost  care  and  skill  is 
required,  in  order  to  avoid  injuries  5  but  in  the  latter  case,  only  such  as  skilful, 
prudent,  and  discreet  persons,  having  the  management  of  such  business  in  such 
a  neighborhood,  would  naturally  be  expected  to  put  forth. 

Negligence  of  Plaintiff .  —  The  plaintiff  cannot  recover  for  an  injury  resulting 
from  the  negligence  of  the  defendant,  if,  notwithstanding  such  negligence,  he 
might  have  avoided  the  injury  by  the  exercise  of  care  and  prudence  on  his  part, 
or  if  his  own  want  of  such  care  and  prudence,  or  that  of  the  party  injured,  in 
any  way  contributed  directly  to  the  injury. 

Damages.  —  In  a  case  where  the  mother  is  to  be  compensated  for  the  injury 
or  loss  consequent  upon  the  death  of  her  infant  child,  the  shock  or  suffering  of 
feeling  is  not  to  be  taken  into  the  account,  but  only  the  pecuniary  loss,  and  that 
is  not  to  be  extended  beyond  the  minority  of  the  child. 

The  Baltimore  and  Ohio  Railroad  Company  were  the  owners  of  a  track  on 
Locust  Point,  in  the  City  of  Baltimore,  and  used  a  locomotive  for  the  regulation 
of  the  trains,  picking  up  empty  cars  and  uniting  them  to  be  sent  out  on  the  main 
track.  On  the  occasion  in  question,  a  train  had  been  formed  in  this  manner, 
consisting  of  many  cars,  and  was  being  backed  at  a  very  slow  speed  round  a 
curve,  on  which  were  houses  that  prevented  the  engineman  from  seeing  the  back 
of  the  train  or  the  end  of  the  car.  Two  boys,  playing  in  the  neighborhood,  who 
saw  the  train  in  motion,  ran  to  get  a  ride  on  the  last  car,  catching  hold  of  the 
bumper,  and  with  their  feet  on  the  brake  car.  A  jolt  threw  one  off,  and  he 
was  killed,  while  the  other  was  badly  injured,  losing  a  part  of  one  hand.  It 
•was  in  proof  that  these  boys  had  again  and  again  been  driven  from  the  cars  on 
other  occasions,  and  their  parents  informed  of  their  conduct.  It  was  admitted 
that  there  was  no  employee  of  the  company  on  the  end  car,  and  that  the  en- 
gineman and  conductor  did  not  know  of  the  accident  till  some  time  after  it 
happened. 

VOL.  1.  40 


626  NOTES. 

The  opinion  of  the  court  was  delivered  by 

Bowie,  C.  J.  —  These  are  cross-appeals  in  an  action  instituted,  under  the  first 
and  second  sections  of  Article  65  of  the  Code,  by  the  state  for  the  use  of  a  wid- 
owed mother,  whose  son  was  killed  under  the  circumstances  detailed  in  the  bill 
of  exceptions. 

After  evidence  was  offered  by  both  parties,  a  series  of  prayers  was  submitted 
by  each,  all  of  which  were  rejected,  and  other  instructions  given  by  the  court 
instead  thereof. 

To  which  rejection,  and  the  instructions  given,  the  plaintiffs  and  defendants 
severally  excepted. 

The  counsel  of  the  defendants  having  filed  in  these  causes  a  declaration  in 
writing,  that,  in  the  event  of  an  affirmance  of  the  judgment  as  against  the  plain- 
tiffs on  their  appeal  in  the  first  case,  the  defendants  will  abandon  their  excep- 
tions, it  is  proper  first  to  inquire  whether  the  appellants  have  been  aggrieved  by 
the  action  of  the  court  below. 

The  General  Assembly  of  this  state,  in  the  year  1852,  finding  the  common-law 
maxim,  "  Personal  actions  die  with  the  person,"  unsuited  to  the  circumstances 
and  condition  of  the  people,  enacted  a  law  entitled  "  An  act  to  compensate  the 
families  of  persons  killed  by  the  wrongful  act,  neglect,  or  default  of  another  per- 
son." To  make  its  design  more  obvious,  the  fourth  section  provides,  "  the  word 
person  shall  apply  to  bodies  politic  and  corporate,"  and  "  all  corporations  shall 
be  responsible,  under  this  act,  for  the  wrongful  acts,  neglect,  or  default  of  all 
agents  employed  by  them." 

The  material  provisions  of  this  act,  as  well  as  its  title,  are  derived  from  the 
9th  and  10th  Victoria,  and  are  embodied  in  Art.  65  (tit.  Negligence)  of  the 
Code. 

The  object  of  the  several  series  of  prayers  was  :  1st.  To  furnish  the  jury  with 
a  standard  of  the  care  and  diligence,  required  by  law  of  the  defendants,  to  ex- 
empt them  from  liability  for  damages  for  the  injury  incurred.  2d.  To  prescribe 
the  care  necessary  to  be  exercised  by  the  deceased  to  entitle  his  next  of  kin  to 
recover.     3d.  To  define  the  measure  of  damages. 

The  appellants'  first  prayer  required  the  defendants,  under  the  circumstances 
therein  predicated,  "  to  exercise  the  utmost  care  and  diligence  to  prevent  acci- 
dents endangering  the  life  or  lives  of  the  people  or  inhabitants  of  the  said  city." 

The  second  held,  that  the  defendants  were  bound  to  use  all  the  means  and 
measures  of  precaution  that  the  highest  prudence  would  suggest,  and  which  it 
was  in  their  power  to  employ,  and  if  the  use  of  a  guard,  or  look-out,  at  the  head 
or  in  the  rear  of  said  cars  *  *  *  was  a  measure  by  which  such  accidents  would 
probably  be  avoided,  the  omission  was  culpable  negligence. 

The  appellants'  third  prayer  affirms  that  the  jury,  in  the  estimate  of  damages, 
should  take  into  consideration  the  expense  to  which  the  plaintiff  was  subjected 
in  consequence  of  the  accident,  and  the  loss  resulting  therefrom,  not  only  to  the 
present  time,  but  also  the  probable  pi-ospcctive  loss  and  expense,  &c,  and  that, 
in  estimating  the  said  loss  and  damage,  the  jury  are  not  limited  to  the  actual 
pecuniary  loss  provided  in  said  case. 

The  propositions  laid  down  by.  the  court,  in  the  first  instructions,  are  :  — 


NOTES.  627 

That  the  defendants,  in  the  movement  and  management  of  their  cars  and  en- 
gines, were  bound  to  exercise  the  utmost  care  and  diligence  which  it  was  within 
their  means  and  power  to  employ,  to  prevent  accidents,  and  injuring  or  endan- 
gering the  life  or  lives  of  the  people  ;  and  if  the  jury  find  that  the  child  of  the 
plaintiff's  cestui  que  use  was  run  over  and  killed  by  the  defendants'  cars,  as  de- 
scribed by  the  witnesses,  and  that,  if  the  defendants,  in  the  use  and  manage- 
ment of  their  cars  and  engines,  had  exercised  the  highest  degree  of  care  and  dili- 
gence "  which  it  was  within  their  means  and  power  to  employ,"  the  said  accident 
could  have  been  prevented,  then  the  plaintiff  is  entitled  to  recover  in  the  ac- 
tion ;  but  although  the  jury  may  find  that  the  said  accident  could  have  been 
prevented  by  the  use  of  such  care  and  diligence  on  the  part  of  the  defendants, 
yet  the  plaintiff  is  entitled  to  recover  if  the  jury  believe  the  accident  could  have 
been  avoided  by  the  exercise  of  that  degree  of  care,  by  the  said  child,  which 
was,  under  all  the  circumstances,  to  be  naturally  and  reasonably  expected  from 
one  of  said  boy's  age  and  intelligence. 

The  degree  of  care  and  diligence  imposed  by  law  on  the  defendants,  in  the 
instruction  given  by  the  court,  is  as  high  as  that  required  by  the  appellants' 
prayers ;  the  degree  is  the  "  utmost  care  and  diligence,"  the  "  highest  it  was 
within  their  means  and  power  to  employ  "  ;  the  only  material  difference  is,  that 
one  of  the  appellant's  prayers  asked  the  court  to  instruct  the  jury  specifically, 
"  that  if  the  use  of  a  guard  or  look-out,  at  the  head,  or  in  the  rear  of  said  cars, 
was  a  measure  by  which  such  accidents  would  probably  be  avoided,  the  omission 
was  culpable  negligence."  The  general  terms  used  by  the  court  embraced  all 
the  particulars  specified  by  the  prayer  of  the  appellant  qualified  by  the  words, 
"  it  was  within  their  means  and  power  to  employ." 

The  jury  were  at  liberty  to  find,  under  the  instruction  given,  and  perhaps  did 
find,  that  the  absence  of  the  guard  constituted  the  want  of  the  "  highest  care 
and  diligence  within  the  means  and  power  of  the  defendants,"  and  therefore 
rendered  their  verdict  in  favor  of  the  plaintiff. 

The  liability  of  the  defendants  in  this  case  did  not  depend  upon  their  obliga- 
tions as  carriers  of  passengers,  in  which  character  they  are  bound  "  to  use  the 
utmost  care  and  diligence  which  human  foresight  can  use."  Stockton  v.  Frey,  4 
Gill,  406,  422,  423  ;  Worthington  v.  Baltimore  and  Ohio  Railroad  Co.  (in  this 
court  not  yet  reported).  But  their  liability,  if  any,  arises  upon  a  statute  which 
limits  the  action  to  such  wrongful  act,  neglect,  or  default,  "  as  would  (if  death 
had  not  ensued)  have  entitled  the  party  injured  to  maintain  an  action  and  re- 
cover damages  in  respect  thereof."     Vide  Code,  art.  65,  §  1. 

The  party  injured  not  being  a  passenger,  the  defendants  were  not  required 
to  exercise  that  degree  of  vigilance  which  the  law  required  toward  those  with 
whom  there  is  a  relation  of  trust  and  confidence,  or  bailment  between  the 
parties.  "  Towards  the  one,  the  liability  of  the  latter  springs  from  a  contract 
express  or  implied,  and  upheld  by  an  adequate  consideration.  Towards  the 
other,  he  is  under  no  obligation  but  that  of  justice  and  humanity.  While  en- 
gaged in  their  lawful  business  both  are  bound  to  use  a  degree  of  caution  suited 
to  the  exigences  of  the  case."     8  Barb.  378. 

In  an  analogous  case,  this  court  said  :  Railroad  companies  should  use  "  such 


628  NOTES. 

care  and  diligence  in  using  the  locomotive  upon  the  road,  as  would  be  exercised 
by  skilful,  prudent,  and  discreet  persons,  having  the  control  and  management 
of  the  engine,  regarding  their  duty  to  the  company,  the  demands  of  the  public, 
and  the  interests  of  those  having  property,  and  having  a  proper  desire  to  avoid 
injuring  property  along  the  road."  This  was  said  in  a  case  of  injury  to  proper- 
ty, but  is  cited  with  approbation  by  Redfield  as  applicable  to  persons.  Redfield 
on  Railways,  345,  4  Md.  R.  257. 

The  court's  instruction  did  not  close  with  the  definition  of  the  degree  of  care 
and  diligence  on  the  part  of  defendants,  but  proceeded  to  inform  the  jury,  al- 
though the  accident  could  have  been  prevented  by  the  exercise  of  such  care 
and  diligence  by  the  defendants,  yet  the  plaintiff  is  not  entitled  to  recover,  if 
the  jury  believe  the  accident  could  have  been  avoided  by  the  exercise  of  such 
care  by  the  child  as  might,  under  all  the  circumstances,  have  been  reasonably 
expected  from  one  of  his  age  and  intelligence.  In  other  words,  if  there  was 
neglect  or  default  on  the  part  of  the  boy,  or  the  absence  of  that  prudence  which 
boys  of  like  age  and  capacity  usually  exhibit,  the  defendants  were  not  liable,  al- 
though, by  the  exercise  of  extraordinary  care  on  their  part  the  accident  might 
have  been  prevented. 

This  ruling  is  in  conformity  with  all  the  text-writers,  and  the  great  majority 
of  adjudged  cases.    Redfield  on  Railways,  §  179  ;  2  Car.  &  R.  730  ;  8  C.  B.  115. 

It  is  objected  on  the  part  of  the  plaintiff  below,  the  appellant  in  this  case,  that 
the  court's  first  instruction  was  erroneous,  in  instructing  the  jury,  the  action 
could  not  be  maintained  "  if  the  jury  believed  the  accident  could  have  been 
avoided  by  the  exercise  of  that  degree  of  care  by  the  said  child,  which  was,  under 
all  the  circumstances,  to  be  naturally  and  reasonably  expected  from  one  of  his 
age  and  intelligence."  Whereas  the  court  should  have  told  the  jury  the  plain- 
tiffs could  not  recover  if  the  jury  found  "  there  was  a  want  of  that  degree  of  care 
on  the  part  of  the  said  child  which,  under  the  circumstances,  was  naturally  and 
reasonably  to  be  expected  in  one  of  his  age  and  intelligence."  The  question  of  the 
"  want  of"  or  absence  of  such  care,  should  have  been  left  to  the  jury  rather  than 
the  exercise  of  such  care.  It  is  difficult,  if  not  impossible,  to  perceive  the  differ- 
ence between  the  two  propositions.  In  the  court's  instructions  the  proposition 
is  stated  affirmatively  ;  in  the  appellant's  objection  it  is  negatively.  The  jury 
were  to  find  whether  there  was  or  was  not  due  care  on  the  part  of  the  deceased. 
They  are  told  by  the  court,  "  if  they  believed  the  accident  could  have  been 
avoided  by  the  exercise  of  that  degree  of  care,"  &c,  the  plaintiff  could  not  re- 
cover. The  appellant  insists  that  not  the  exercise,  but  the  want  of  care  (which 
is  the  non-exercise  of  care),  is  the  criterion.  The  principle  of  the  common  law, 
that  a  plaintiff  cannot  recover  for  injuries  to  which  his  own  negligence  directly 
contributed,  is  admitted,  and  it  seems  to  us  it  was  clearly  expressed  by  the  court 
in  the  instruction  given,  as  far  as  the  conduct  of  the  deceased  child  was  con- 
cerned. In  the  case  of  Baltimore  and  Ohio  Railroad  Co.  v.  Lamborn,  12  Md.  R. 
257,  261,  and  Keech's  Case,  17  Id.  32,  46,  the  rule  of  the  common  law,  that  the 
plaintiff  could  not  recover  for  injuries  to  which  his  own  negligence  directly  con- 
tributed, was  held  to  apply  to  actions  brought  on  the  statutes  therein  referred  to, 
and  the  instructions  affirmed  by  the  court  in  those  cases,  submitted  to  the  jury 


NOTES.  629 

the  question  of  negligence  on  the  part  of  the  plaintiff,  as  well  as  on  the  part  of 
the  defendant. 

The  same  policy  would  require  the  plaintiff  to  show,  in  actions  for  injuries 
resulting  in  death,  that  neither  the  party  injured,  nor  the  parties  for  whose  use 
the  action  was  brought,  had  contributed,  by  neglect  or  want  of  care,  to  the  ca- 
lamity complained  of.  This  omission  in  the  instruction  given  enured  to  the  ad- 
vantage of  the  appellant,  and  cannot  be  taken  advantage  of  on  her  appeal. 

The  objection  raised  by  the  plaintiff  to  the  court's  second  instruction  involves 
the  measure  of  damages.  In  the  language  of  the  brief,  "  it  was  erroneous, 
1st.  Because  it  ignores  the  mental  sufferings  of  the  mother  suing  for  damages 
sustained  by  the  loss  of  the  child,  and  confines  her  claim  to  pecuniary  damages." 
2d.  Because  it  limits  the  pecuniary  loss  of  the  mother,  the  cestui  que  use,  "  to 
the  minority  of  the  child,  and  deprives  the  jury  of  the  right  to  award  her  dam- 
ages for  the  pecuniary  loss  she  would  reasonably  sustain  in  her  advanced  life  for 
want  of  the  labor  and  services  of  the  son,  even  after  he  reached  his  majority. 
The  rule  should  have  been  to  allow  what  they  considered  a  reasonable  compen- 
sation." 

In  the  absence  of  any  interpretation  of  this  act  by  our  own  courts,  we  must 
compare  and  weigh  the  reasoning  of  the  authorities  cited,  in  which  similar  acts 
have  been  construed  by  other  tribunals. 

First  in  order  are  the  decisions  in  England  upon  the  act  called  Lord  Camp- 
beWs  Act,  Redfield,  §  179.  The  observations  of  Coleridge,  J.,  in  the  case  of 
Blake,  Adm'r.  v.  The  Midland  Railw.,  10  Eng.  L.  &  Eq.  437,  cited  by  Redfield 
in  his  notes,  are  very  strong  in  support  of  the  instructions  given  by  the  court 
below  in  this  case,  confining  the  jury  to  the  pecuniary  damage  sustained  by  the 
plaintiff.  He  says :  "  Our  only  safe  course  is  to  look  at  the  language  the  legis- 
lature has  employed.  The  title  of  the  acts  is  for  compensating  families  of  per- 
sons, &c,  not  for  solacing  their  wounded  feelings."  ....  By  the  terms  of  the 
act,  quoting  the  second  section,  "  the  measure  of  damages  is  not  the  loss  or  suf- 
fering of  the  deceased,  but  the  injury  resulting  from  his  death,  to  his  family." 
This  language  seems  more  appropriate  to  a  loss  of  which  some  estimate  may  be 
made,  than  an  indefinite  sum,  independent  of  all  pecuniary  estimate,  to  sooth 
the  feelings,  and  the  division  of  the  amount  strongly  tends  to  the  same  conclu- 
sion. 

As  we  have  before  intimated,  the  title  and  language  of  the  Act  of  Assembly 
of  this  state  are  most  literally  the  same  with  those  of  the  English  statute. 

The  former  contains,  also,  the  provisions  for  distributing  the  damages  among 
the  surviving  members  of  the  deceased  family,  on  which  the  learned  judge  relies 
for  adopting  the  principle  of  compensation  for  damages  which  may  be  estimated 
in  money. 

The  American  cases,  arising  upon  acts  varying  in  language,  necessarily  lead, 
as  observed  by  Judge  Redfield,  to  a  diversity  of  decisions.  We  have  no  better 
guide  than  the  construction  of  a  statute  originating  in  the  same  policy,  and  ex- 
pressed in  the  same  words  by  enlightened  jurists,  distinguished  for  their  inde- 
pendence and  jealous  regard  for  the  rights  of  suitors. 

It  is  assumed  by  the  learned  author  just  mentioned,  as  the  conclusion  of  the 


630  NOTES. 

best-considered  cases  in  this  country,  that  mental  anguish,  which  is  the  natural 
result  of  the  injury,  may  be  taken  into  the  estimate  of  the  damages  to  the  party 
injured. 

The  connection  in  which  this  assumption  is  made,  might  lead  to  the  inference 
that  it  applied  to  actions  brought  by  survivors  for  injuries  done  to  their  deceased 
ancestor,  relative  or  next  of  kin ;  but  upon  reference  to  the  authorities  cited,  it 
will  be  that  the  plaintiffs  in  those  cases  were  the  persons  sustaining  the  bodily 
harm,  and  in  estimating  their  damages  their  mental  suffering  constituted  an 
element  of  compensation.     1  Cush.  451  ;  10  Barb.  623. 

To  have  instructed  the  jury  to  allow  "  what  they  considered  a  reasonable 
compensation,"  would,  in  the  language  of  the  Supreme  Court  of  Pennsylvania, 
"  be  giving  the  jury  discretionary  power,  without  stint  or  limit,  highly  dangerous 
to  the  rights  of  the  defendant,  and  leaving  them  without  any  rule  whatever." 
Rose  v.  Story,  1  Barr.  190,  197.  In  the  case  of  the  Pennsylvania  Railroad  Co. 
v.  Kelly,  7  Casey,  372,  the  same  learned  court  say: 

"  Generally  speaking,  the  influence  of  the  court,  in  this  class  of  cases,  should 

be  expected  to  restrain  those  excesses  into  which  juries  are  apt  to  run 

Wild  verdicts  are  frequently  rendered.  And  the  tendency,  in  modern  times, 
undoubtedly  is  to  excessive  damages,  especially  where  they  are  to  be  assessed 
against  corporations."  Ibid.  379;  The  Pennsylvania  Railroad  Co.  v.  Rebe  et  ux, 
33  Penn.  St.  318,  330. 

The  last  objection  to  the  second  instruction  granted,  is  that  it  limits  the  mother 
to  compensation  for  loss  of  her  son  during  his  minority  only. 

To  submit  to  a  jury  the  value  of  a  life,  without  limit  as  to  years,  would  have 
been  to  leave  them  to  speculate  upon  its  duration  without  any  basis  of  calcula- 
tion. 

The  law  entitles  the  mother  to  the  services  of  her  child  during  his  minority 
only  (the  father  being  dead)  ;  beyond  this,  the  chances  of  survivorship,  his  ability 
or  willingness  to  support  her,  are  matters  of  conjecture  too  vague  to  enter  into 
an  estimate  of  damages  merely  compensatory.  According  to  the  appellant's 
theory,  the  mother  and  the  son  are  supposed  to  live  on  together  to  an  indefinite 
age  ;  the  one  craving  for  sympathy  and  support,  the  other  rendering  reverence, 
obedience  and  protection.  Such  pictures  of  filial  piety  are  inestimable  moral 
examples,  beautiful  to  contemplate,  but  the  law  has  no  standard  by  which  to 
measure  their  loss. 

This  court,  being  of  opinion  that  the  several  instructions  granted  by  the  court 
below  were  as  favorable  to  the  plaintiff  (appellant)  as  she  was  entitled  to,  and 
that  she  was  not  prejudiced  by  the  rejection  of  the  prayers  submitted  on  her 
part,  finds  no  error  in  the  rulings  of  the  court  below,  in  the  first  appeal,  and 
will  affirm  the  judgment.     Judgment  affirmed. 

The  first  proposition  maintained  in  this  case  is  very  obvious  upon  principle  as 
well  as  the  decided  cases.  Where  such  an  amount  of  passenger  traffic  as  is  now 
done  by  railways  is  confided  to  agents  operating  by  means  of  so  powerful  and 
dangerous  an  element  as  steam,  no  state  or  country  could  fairly  justify  any  rule 
or  responsibility  except  that  of  the  utmost  practicable  watchfulness,  skill,  and 
ability.     And  no  doubt  these  considerations,  connected  with  the  nature  and  ex- 


NOTES.  631 

tent  of  the  business  of  railways,  will  justify  a  demand  that  their  business  shall 
be  so  conducted  as  to  give  fair  and  just  opportunity  for  the  conduct  of  other 
legitimate  business,  more  or  less  interfering  with  that  of  the  company,  with  rea- 
sonable security.  The  rule,  as  stated  in  some  of  the  earlier  cases,  in  regard  to 
railways,  is  that  they  should  be  so  conducted,  with  reference  to  other  business 
interests,  that  all  may  have  proper  scope  and  reasonable  opportunity  to  escape 
detriment ;  the  same  as  if  the  company  owned  both  interests,  and  desired  the 
success  of  both.  Quimby  v.  Vermont  Central  Railw.  Co.,  23  Vt.  R.  387.  This 
rule,  as  we  have  often  attempted  to  show,  will  apply  with  great  stringency  to 
any  business  which  is  more  than  commonly  liable  to  destroy  life  or  property. 
Prudent  men  always  measure  their  care  and  diligence  by  the  exigencies  of  the 
business  and  the  occasion.  Hence  it  was  held,  in  an  early  case  in  California 
(Wilson  v.  Cunningham,  3  Cal.  R.  241),  that  where  the  track  of  a  railway  in- 
tersects the  thoroughfares  of  a  city  the  companies  are  bound  to  exercise  extraor- 
dinary care  not  to  injure  persons  in  the  streets. 

Accordingly,  in  the  present  case,  it  is  probably  true,  as  suggested  by  the  court, 
that  where  a  company  push  a  train  of  cars  backwards  through  the  streets  of  a 
city,  they  would  be  bound  to  have  a  servant  so  stationed  that  he  could  look  out 
for  persons  or  property  exposed  to  injury,  and  who  could  either  himself  stop  the 
train  or  give  signal  to  some  one  for  that  purpose  in  time  to  prevent  collision  and 
damage.  But  this  is  not  a  question  of  law  altogether,  and  would  ordinarily 
have  to  be  passed  upon  by  the  jury.  We  have  discussed  this  general  question 
of  diligence  and  negligence,  both  as  to  the  principles  involved  and  the  cases 
bearing  upon  it,  in  Taylor  v.  Briggs,  28  Vt.  R.  180,  more  in  detail  than  would 
be  proper  here. 

In  regard  to  the  effect  of  general  negligence  in  the  party  to  whom  the  injury 
occurs,  remotely  exposing  him  to  the  injury,  but  forming  no  part  of  the  proxi- 
mate cause  of  the  same,  the  cases  are  numerous,  and  at  the  present  day  reason- 
ably concurrent  in  the  result,  that  unless  the  want  of  due  care  on  the  part  of 
the  party  injured,  or  of  those  responsible  for  the  conduct  of  such  part,  con- 
tributed directly  to  the  production  of  the  injury,  the  other  party  will  be  respon- 
sible, provided  his  negligence  was  the  efficient  cause  of  the  injury,  and,  with  the 
exercise  of  proper  care,  he  might  have  avoided  inflicting  it,  notwithstanding  the 
general  want  of  proper  watchfulness  by  the  party  injured.  The  cases  are  too 
numerous  upon  this  to  be  quoted  in  detail.  Davies  v.  Mann,  10.  M.  &  W.  546  ; 
Illidge  v.  Goodwin,  5  C.  &  P.  190,  are  the  leading  English  cases.  The  Ameri- 
can cases  will  be  found,  in  almost  all  the  states,  to  have  maintained  the  same 
view.  Trow  v.  Vermont  Central  Railw.  Co.,  24  Vt.  R.  487  ;  Isbell  v.  N.  Y.  & 
N.  H.  R.  R.  Co.,  27  Conn.  R.  393  ;  Kerwhacker  v.  C.  C.  &  C.  R.  R.  Co.,  3 
Ohio  St.  172;  C.  C.  &  C.  R.  R.  Co.  v.  Elliott,  4  Id.  474.  The  rule  is  very 
broadly  stated  in  New  Haven  Steamboat  &  Transportation  Co.  v.  Vanderbilt, 
16  Conn.  R.  421. 

And  it  seems  that  the  fact  that  the  person  or  property,  as  cattle,  are  trespass- 
ing at  the  time  the  injury  occurs,  will  not  subject  them  to  damage  without  re- 
dress, provided  there  is  no  such  wrong  on  the  part  of  the  person,  or  of  the  owner 
of  the  property,  as  to  contribute  directly  to  the  injury,  so  that  the  other  party 


632  NOTES. 

might  not,  with  ordinary  care,  have  avoided  it.  Isbell  v.  N.  Y.  &  N.  H.  R.  R. 
Co.,  supra ;  Daley  v.  Norwich  &  Worcester  R.  R.  Co.,  26  Conn.  R.  591  ;  Brown 
v.  Lynn,  31  Penn.  St.  510;  C.  C.  &  C.  R.  R.  Co.  v.  Terry,  8  Ohio  St.,  570. 
But  where  the  negligence  of  the  party  injured,  in  any  manner  or  to  any  ex- 
tent, contributed  directly  to  the  production  of  the  injury,  however  slightly,  there 
can  be  no  recovery.  Witherly  v.  Regent's  Canal  Co.,  12  C.  B.  N.  S.  2  ;  s.  c. 
3  F.  &  F.  61.  So  in  a  very  late  English  case,  where  the  party  finding  the  gates 
at  a  crossing  negligently  closed  in  the  night  time,  after  every  exertion  to  find 
some  servant  of  the  company  to  open  them,  necessarily  opened  the  gates  him- 
self in  order  to  pursue  his  journey,  and  where,  without  any  fault  on  his  part, 
the  gate  swung  back  by  its  own  weight  and  struck  the  horse,  which  became 
unmanageable,  whereby  the  plaintiff  was  thrown  out  of  the  carriage  and  in- 
jured, it  was  held  he  could  not  recover,  inasmuch  as  he  had  no  right  to  open 
the  gates  himself,  and  the  injury  was  produced  by  his  own  wrongful  act  in  doing 
so.     Wyatt  v.  Great  Western  Railw.  Co.,  11  Jur.  N.  S.  825. 

The  question  of  damages  is  one  in  regard  to  which,  for  a  time,  the  cases 
seemed  to  vacillate  somewhat  upon  the  point  whether  the  manner  of  the  inflic- 
tion of  the  injury  and  the  shock  to  the  feelings  of  those  near  relatives  for  whose 
benefit  the  action  was  brought,  could  be  taken  into  the  account.  It  seems  very 
clear  that  where  the  suit  is  for  the  benefit  of  the  very  person  sustaining  the  in- 
jury, there  could  be  no  question  that  any  shock  or  injury  to  his  feelings,  any 
mental  suffering,  which  was  the  direct  consequence  of  the  injury,  should  be 
considered  in  estimating  damages.  Such  suffering  is  a  part  of  the  necessary 
labor  to  be  borne  by  the  party  injured,  in  consequence  of  the  injury.  Canning 
v.  Williamstown,  1  Cush.  451 ;  Morse  v.  Auburn  &  Syr.  Railw.  Co.,  10  Barb. 
621.  But  in  estimating  damages  to  other  parties,  affected  incidentally  by  the 
death  of  the  party  injured,  it  seems  now  pretty  generally  conceded,  that  no 
account  of  wounded  feelings  can  be  taken.  And  this,  upon  the  whole,  seems 
but  just  and  reasonable.  For  there  would  be  no  uniformity  in  cases  of  this  kind 
if  the  jury  were  allowed  to  go  into  considerations  so  remote  and  uncertain. 
Penn.  Railw.  Co.  v.  McCloskey,  23  Penn.  St.  526.  So  in  North  Penn.  Railw. 
Co.  v.  Robinson,  44  Penn.  St.  175,  it  is  said  the  value  of  the  life  lost,  estimated 
by  a  pecuniary  standard,  is  what  is  to  be  recovered. 

There  is  one  qualification  in  regard  to  the  extent  to  which  damages  were 
allowed  to  be  given  by  the  jury  in  the  principal  case  which  has  not  generally 
been  adverted  to,  and  which  seems  to  us  somewhat  liable  to  misconstruction. 
We  refer  to  the  restriction  limiting  prospective  damages  to  the  minority  of  the 
child.  It  has  been  decided  that  a  father  may  recover  pecuniary  damages  for 
the  death  of  a  son  twenty-seven  years  of  age,  unmarried,  and  who  has  been 
accustomed  to  make  occasional  presents  to  his  parents.  Dalton  v.  South  Eastern 
Railw.  Co.,  4  C.  B.  N.  S.  296.  And  it  was  here  held,  as  it  has  often  been  in 
other  cases,  that  the  jury  could  not  give  damages  by  way  of  compensating  the 
father  for  the  expenses  of  his  son's  funeral  or  for  procuring  family  mourning. 
So  also  Franklin  v.  South  Eastern  Railw.  Co.,  3  H.  &  N.  211 ;  Blake  v.  Midland 
Railw.  Co.,  18  Q.  B.  93.  It  was  lately  held  in  the  Exchequer  Chamber  (Pym  v. 
Great  Northern  Railw.  Co.,  10  Jur.  N.  S.  199),  that  where,  in  consequence  of 


NOTES.  633 

the  death  of  the  father,  his  income  was,  by  direction  of  his  will,  unequally  dis- 
tributed among  his  widow  and  children,  the  eldest  son  taking  most  of  it,  that 
damages  might  be  recovered  for  the  benefit  of  the  whole  class  on  that  ground, 
some  of  the  children  being  thereby  deprived  of  an  expected  support,  had  the 
life  of  the  father  continued.  In  the  very  late  English  case  of  Boulter  v.  Web- 
ster, 13  W.  R.  289,  the  Court  of  Queen's  Bench  adhered  to  the  rule  that  no  dam- 
ages could  be  awarded  to  the  parent  by  reason  of  the  death  of  his  child,  on 
account  of  the  expenses  of  the  funeral. 


Note   II.  to  §  129,  ante,  p.  506. 

LIABILITY   FOR   ACT    OF   THE   AGENT   OR   SERVANT   OF   THE   CONTRACTOR. 

Where  one  gratuitously  permits  another  to  use  a  shed  to  do  a  piece  of  car- 
penter work,  it  is  a  revocable  license,  and  has  no  analogy  to  a  badment  of 
personal  property,  and  the  only  duty  imposed  upon  such  person  is  that  he  should 
not  be  guilty  of  negligence  in  the  use  of  the  shed.  Therefore,  where  a  servant 
of  such  person,  in  the  course  of  the  work,  dropped  a  match  with  which  he  had 
lighted  his  pipe,  and  thereby  set  fire  to  the  shed,  it  was  held  the  defendant  was 
not  liable  for  the  damage,  notwithstanding  the  jury  found  it  occurred  from  the 
negligent  act  of  the  defendant's  workman.  But  if  the  negligence  of  the  work- 
man had  been  in  a  matter  within  the  range  of  his  employment,  the  defendant 
would  have  been  responsible.  Williams  v.  Jones,  3  H.  &  C.  602;  s.  c.  11  Jur. 
N.  S.  843  ;  Woodman  v.  Joiner,  10  Jur.  N.  S.  852 ;  Bartlett  v.  Baker,  34  L.  J. 
Exch.  8 ;   s.  c.  3  H.  &  C.  153 ;  Blake  v.  Thirst,  2  H.  &  C.  20. 

Where  a  railway  company  was  empowered  by  act  of  parliament  to  build  a 
bridge  across  a  navigable  river,  but  were  to  do  it  so  as  not  to  detain  vessels  longer 
than  while  persons  and  teams  ready  to  cross  the  bridge  were  passing  over,  dur- 
ing the  construction  of  the  work  by  a  contractor,  by  some  defect  of  construction 
the  bridge  could  not  be  raised,  and  the  plaintiff's  vessel  was  detained,  it  was  held 
the  company  were  responsible.  Hole  v.  Sittingbourne  &  Sheerness  Railw.,  6 
H.  &  N.  488. 

A  person  employing  another  to  do  a  lawful  act,  is  presumed,  in  the  absence 
of  evidence  to  the  contrary,  to  employ  him  to  do  it  in  a  lawful  and  reasonable 
manner ;  and  therefore,  unless  the  parties  stand  in  the  position  of  master  and 
servant,  the  employer  is  not  responsible  for  damages  occasioned  by  the  negligent 
mode  in  which  the  work  is  done.     Butler  v.  Hunter,  7  H.  &  N.  826,  S.  P. 


634 


STREET   RAILWAYS. 


Note  III.  to  §  76,  ante,  p.  298. 


1.  Question   of  jurisdiction    of  the   subject- 

matter  of  controversy. 

2.  The  right  of  way,  where  different  companies 

run  upon  the  same  track. 


3.  The  mode  of  estimating  compensation, 
where  one  street  railway  company  use  the 
track  of  another  company. 


As  passenger  railways  now  exist  in  most  of  the  cities  and  large  towns  in  the 
country,  and  the  question  will  often  arise  in  regard  to  compensation  to  be  paid 
by  one  company  for  the  use  of  the  track  of  another  company,  we  have  in- 
serted our  report  in  an  important  case  in  Massachusetts,  which  was  acquiesced  in 
by  the  parties,  and  made  the  basis  of  adjustment  between  them  without  an 
appeal  to  the  court  on  exceptions.  Some  other  questions  are  also  discussed 
briefly. 

The  Broadway  Railroad  Company  v.  The  Metropolitan  Railroad  Company. 

I.  The  petitioners  claimed  from  the  first,  and  throughout  the  hearing,  that 
neither  the  court  nor  the  commissioners  had  any  legitimate  jurisdiction  of  the 
matters  at  issue  between  the  parties,  and  demanded  of  the  commissioners  a 
formal  report  of  our  determination  upon  that  question.  This  exception  to  the 
jurisdiction  is  based  mainly  upon  the  terms  upon  which  the  Metropolitan  Rail- 
road Company  were,  by  the  City  of  Boston,  allowed  to  lay  their  track,  so  as  to 
complete  the  circuit  (as  it  is  familiarly  called),  the  compensation  for  the  use  of 
which  is  now  in  question.  This  order  was  obtained  in  pursuance  of  the  petition 
of  the  Metropolitan  Railroad  Company,  with  the  consent  and  concurrence  of  the 
Broadway  Railroad  Company,  and  in  consummation  of  an  arrangement  between 
those  who  represented  the  respective  companies  before  the  legislature,  and  for 
the  purpose  of  compromising  the  controversy  then  going  forward  between  them, 
before  the  legislature,  in  regard  to  the  right  to  build  and  use  this  circuit. 

It  was  arranged  that  the  Metropolitan  Company  should  take  such  addition  to 
their  charter  as  was  requisite  for  the  purpose,  and  go  forward  and  obtain  the 
location  of  their  track  upon  this  circuit,  and  construct  the  same,  with  the  ex- 
pectation and  understanding  between  those  who  thus  represented  the  interests 
of  the  two  companies,  that  the  Broadway  Company  would  be  allowed  to  run 
their  cars  upon  the  circuit  upon  such  terms  as  might  be  agreed  upon  between 
the  parties,  or  settled  by  the  proper  tribunals,  in  case  of  disagreement.  Nothing 
was  said  at  this  time  by  either  party,  in  regard  to  the  subject  of  toll  or  compen- 
sation to  the  Metropolitan  Company  for  such  use  of  their  track. 

Upon  the  granting  of  the  order  by  the  city  government  for  the  location  of  the 
track  upon  this  circuit  the  following  condition  was  annexed  to  such  order  :  "  This 
location  is  granted  under  the  further  express  proviso  and  condition,  that  the 
Board  of  Aldermen  reserve  the  right  to  permit  the  Middlesex  Railroad  Com- 
pany and  any  other  horse  railroad  company  to  run  cars  over  the  track,  so  located 
by  authority  of  this  order,  for  such  compensation  to  be  paid  to  the  Metropolitan 
Railroad  Company,  and  upon  such  terms  and  conditions  as  the  Board  of  Alder- 
men for  the  time  being  shall  prescribe." 


INSTRUCTION   OF   TRACKS.  —  RIGHT   OF  WAY.  635 

After  the  Metropolitan  Company  had  laid  their  track  and  completed  the  cir- 
cuit, they  permitted  the  Broadway  Company  to  enter  upon  and  use  it,  without 
any  compensation  for  the  use  being  agreed  upon  by  the  parties,  or  fixed  by  the 
Board  of  Aldermen ;  and  without  any  distinct  claim  of  that  kind  being  made  by 
the  Metropolitan  Company  at  the  time  such  use  began,  except  what  is  to  be  in- 
ferred from  the  conversation  which  passed  between  the  agents  of  the  two  com- 
panies, with  reference  to  the  subject  just  before  the  use  began. 

The  lessee  of  the  Broadway  Company  "  asked  the  president  of  the  Metropoli- 
tan Company  what  they  were  going  to  charge  them  ?  "  He  said  "  it  was  a  new 
thing  ;  wait  and  see  what  damage  " ;  "  did  not  know  what  " ;  "  did  not  know  as  it 
would  be  any  ";  and  two  directors  of  that  company,  upon  being  inquired  of  upon 
the  subject,  "said  the  same."  "  But  never  told  them  they  could  run  for  noth- 
ing "  ;  said  "  it  was  a  new  experiment." 

The  use  of  this  circuit  began  on  the  5th  day  of  September,  1861,  by  the 
Broadway  Company,  and  they  were  formally  notified  in  February,  1862,  that 
they  would  be  expected  to  pay  for  the  use,  or  as  the  witness  said,  "  to  pay 
damage, '  "  and  that  some  arrangement  "  (in  regard  to  the  subject)  "  must  be 
fixed."  From  this  and  other  matters  passing  between  the  companies  and  their 
agents,  both  before,  at  the  time,  and  after  such  use  began,  the  commissioners  are 
satisfied  that  it  was  intended  by  both  parties,  at  the  time,  to  leave  the  matter  of 
compensation  for  future  adjustment.  The  commissioners  did  not  consider  that 
any,  or  all,  the  preceding  exceptions  could  have  the  effect  to  defeat  the  general 
jurisdiction  of  this  Court  in  the  matter,  and  proceeded  with  the  hearing. 

II.  The  petitioners  next  requested  the  commissioners  to  determine  the  mode 
of  crossing  at  the  intersection  of  the  tracks  at  Beach  Street  and  Harrison  Av- 
enue ;  and  to  decide  which  company  shall  have  the  preference  in  the  right  of 
way  at  such  crossing,  or  which  shall  wait  for  the  other,  when  both  have  cars  ar- 
riving at  the  crossing  near  the  same  time.  It  appeared  that  the  Broadway  Com- 
pany had  thus  far  conceded  the  right  of  way  to  the  Metropolitan  Company  upon 
their  own  track ;  and  the  commissioners  consider  this  to  be  reasonable  and  just, 
and  report  that  it  should  be  continued. 

III.  The  petitioners  urged  before  the  commissioners,  that  some  order  should 
be  made  by  them  in  regard  to  the  conductors  of  the  Metropolitan  Company 
stopping  at  the  office  of  the  Company  in  Tremont  Street  each  trip  to  settle 
their  fares.  It  was  claimed  that  there  had  sometimes  been  mismanagement  and 
unnecessary  delay  in  regard  to  this  matter.  But,  at  present,  the  delay  on  this 
account  has  been  reduced  to  one  minute  or  less  each  trip,  which  seemed  to  be 
as  short  a  time  as  could  fairly  be  insisted  upon,  if  the  thing  is  to  be  regarded  as 
allowable.  , 

The  commissioners  being  aware  of  the  embarrassments  attending  the  account- 
ability of  persons  receiving  money  in  the  mode  it  is  received  by  these  conduct- 
ors, and  of  the  liability  of  the  company  to  suffer  loss,  unless  the  settlements  are 
required  to  be  prompt  and  frequent,  have  not  been  able  to  devise  any  scheme 
in  regard  to  the  mode  of  conducting  the  same,  which  they  were  prepared  to  rec- 
ommend as  a  substitute  for  the  one  now  practised.  And  as  this  mode  of  settle- 
ment with  conductors  seems  to  have  been  adopted  by  the  company  after  mature 


636  STREET   RAILWAYS. 

deliberation,  and  to  be  regarded  by  them  as  indispensable  to  their  reasonable 
security  against  loss ;  and  especially  as  it  is  now  conducted  with  the  view  of 
producing  the  least  possible  delay  and  inconvenience  to  the  other  companies 
using  the  same  track  ;  the  commissioners  did  not  feel  prepared  to  recommend  its 
discontinuance,  notwithstanding  its  liability  to  be  so  conducted  as  to  produce 
serious  inconvenience  to  others  using  the  same  track,  as  it  was  claimed  had 
sometimes  been  the  case.  We  have  come  to  this  conclusion  partly  upon  the 
ground  that,  as  we  view  the  matter,  the  rights  of  the  company  owning  the  track 
are  paramount,  and  should  be  first  secured,  as  far  as  they  can  be,  without  un- 
reasonable and  unjust  restraint  upon  othe^  companies  using  the  same  track ; 
and  that  in  cases  where  there  is  a  necessity  that  the  convenience  of  one  com- 
pany should  give  way,  and  the  inconvenience  to  either  company  will  be  nearly 
equal,  it  should  fall  upon  other  companies  rather  than  upon  that  which  owns 
the  track.  We  consider  that  other  companies  should  not  be  allowed  to  use  the 
track  of  the  company  building  and  owning  it,  unless  in  a  manner  and  to  an  ex-. 
tent  consistent  with  the  reasonable  freedom  of  the  latter  in  the  conduct  of  its 
own  operations.  If  we  are  mistaken  in  this  view,  and  the  rights  of  both  com- 
panies are  precisely  equal  in  all  respects,  in  regard  to  the  use  of  the  track  upon 
this  circuit,  it  is  very  possible  some  scheme  may  be  devised  whereby  this  delay 
may  be  obviated.  If  the  Metropolitan  Company  were  required  to  keep  this 
office  for  settlement  with  conductors  upon  some  other  portions  of  their  track, 
where  the  cars  of  other  companies  did  not  run,  it  is  obvious  the  cause  of  com- 
plaint would  be  removed.  This  has  occurred  to  us  as  the  simplest  mode  of 
effecting  that  object ;  but  we  have  not  deemed  the  inconvenience  sufficiently 
serious  to  require  any  order  by  us  at  this  time. 

IV.  In  regard  to  the  matter  of  compensation  claimed  by  the  Metropolitan 
Company  for  the  use  of  their  track  by  the  Broadway  Company,  the  views  pre- 
sented by  the  parties  were  extremely  diverse.  We  shall  only  present  them  to 
such  an  extent  as  to  enable  the  Court  to  pass  upon  them  understandingly. 

1.  The  Broadway  Company  claimed  that  there  is  no  compensation  to  be  al- 
lowed in  such  cases,  since  all  persons  have  equal  right  to  the  use  of  the  high- 
way, and  may  with  impunity  fit  their  carriages  so  as  to  run  upon  the  rails  laid 
by  any  other  person,  natural  or  artificial,  within  the  limits  and  along  the  line  of 
the  highway.  This  claim  was  based,  a  good  deal,  upon  the  assumption  that  the 
carriages  of  other  horse  railroad  companies,  running  upon  the  track  of  the 
Metropolitan  Company,  injured  them  far  less  than  the  injury  resulting  from 
carriages  not  running  upon  their  track,  and  less  than  would  result  from  the 
Broadway  Company  earring  their  passengers  along  the  same  line  in  omnibuses. 
The  Commissioners  were  satisfied  this  assumption  is  altogether  well  founded,  so 
far  as  the  facts  are  concerned,  but  were  not  prepared  to  adopt  the  legal  conclu- 
sions involved  in  this  view  of  the  case. 

2.  The  Broadway  Company  claimed  that  the  Metropolitan  Company  was  pre- 
cluded from  all  claim  for  compensation,  in  this  mode,  on  the  ground  that  under 
the  first  location  of  the  Broadway  Company,  in  Summer  and  Winter  Streets, 
they  had  the  right  to  enter  upon  the  track  of  the  Metropolitan  Company  and  to 
use  the  same,  and  no  compensation  for  such  use  could  be  enforced  against  them 


COMPENSATION  FOR  USE  OF  OTHER  TRACKS.        637 

except  under  some  order  of  the  mayor  and  aldermen  of  the  city.  But  it  being 
conceded  that  this  location  had  been  vacated  by  the  judgment  of  the  Supreme 
Judicial  Court,  and  that  the  Broadway  Company  had  subsequently  obtained  an 
amendment  of  their  charter,  enabling  them  to  unite  •with  the  Metropolitan 
Company's  track,  and  to  use  the  same,  and  the  compensation  for  such  use,  it 
was  expressly  provided  in  such  amendment,  should  be  settled  in  this  mode ; 
and  also  for  other  reasons  the  Commissioners  were  of  opinion  that  this  claim 
was  not  well  founded,  and  overruled  the  same. 

3.  The  Metropolitan  Company  presented  their  claim  for  compensation,  in 
many  different  forms,  in  order,  as  far  as  practicable,  to  enable  the  Court  to  pass 
upon  the  same  understanding^ ;  and  because  the  matter  is  now  one  chiefly  of 
new  impression,  and  where  as  yet  no  rule  of  compensation  has  been  established 
by  the  decision  of  the  courts  or  the  usages  of  business.  We  shall  indicate  these 
claims  briefly. 

(1.)  The  Metropolitan  Company  claimed  that  in  estimating  compensation  to 
them  for  the  use  of  their  track  by  the  Broadway  Company,  the  Commissioners 
should  ascertain  the  net  profits  made  by  that  Company  during  the  period  in 
question,  and  then  average  it  upon  the  whole  track  over  which  their  cars  passed, 
and  give  the  Metropolitan  Company  the  proportion  earned  upon  their  track,  as 
the  just  compensation  for  its  use.  Upon  this  mode  of  estimation  they  claimed 
$8,290.71. 

(2  )  The  Metropolitan  Company  also  claimed  that  the  Commissioners  should 
estimate  the  compensation  for  such  use,  by  allowing  them  the  net  earnings  per 
mile  run  upon  their  track  by  the  Broadway  Company,  which  they  claimed  was 
seven  cents ;  and  should  add  thereto  four  cents  per  mile  run  upon  their  track, 
as  the  just  rate  of  compensation  for  ordinary  expenses  and  deterioration,  and 
five  cents  per  mile  run  for  making  and  repairing  pavements,  making  in  all  six- 
teen cents  per  mile  run  by  the  Broadway  Company  upon  the  track  of  the  Met- 
ropolitan Company,  which,  as  they  claimed,  would  give  them  $9,899.36. 

(3.)  The  Metropolitan  Company  also  claimed  that  the  Commissioners  should 
estimate  the  compensation  to  them  by  taking  into  account  the  net  earnings  of 
the  whole  line  run  by  the  Broadway  Company,  and  divide  such  net  earnings 
upon  the  whole  line  in  proportion  to  the  cost  of  each  portion  of  the  road  run  by 
the  cars  of  the  Broadway  Company,  adding  thereto  the  expenses  incurred  by 
the  Metropolitan  Company  upon  this  circuit,  or  the  just  proportion  of  such  ex- 
pense which  fell  to  the  use  of  the  Broadway  Company.  Upon  this  hypothesis 
they  claimed  $12,044.05.  These  different  views  will  appear  more  in  detail 
upon  the  exhibits  of  the  Metropolitan  Company,  and  with  slight  modifications 
which  we  have  not  stated,  and  which  may  be  referred  to,  marked  D.  No.  10, 
D.  No.  11. 

The  Commissioners  were  not  prepared  to  adopt  and  recommend  either  of  the 
views  above  stated  as  urged  on  the  part  of  the  Metropolitan  Company,  because 
they  did  not  regard  them  as  based  upon  any  rate  of  compensation  bearing  any 
just  proportion,  either  to  the  value  or  to  the  expense  of  the  use  of  the  track  to 
the  respective  parties. 

4.  A  good  deal  of  testimony  was  given  on  the  part  of  the  Metropolitan  Com- 


638  STREET   RAILWAYS. 

pany  with  a  view  to  induce  the  Commissioners  to  fix  some  toll  or  rate  of  com- 
pensation in  proportion  to  the  extent  of  the  track  used.  This  was  based  mainly 
upon  the  rent  paid  different  horse-railroad  companies,  leading  into  Boston,  by 
the  lessees.  But  the  Commissioners  were  not  satisfied  that  any  essential  aid  in 
estimating  this  compensation  could  be  derived  from  this  source.  The  rent  paid 
by  the  lessees  of  horse  railroad  companies  is  usually  a  gross  sum  for  a  given 
extent  of  track.  The  rate  of  such  rent  is  liable  to  be  affected  by  so  many  and 
important  considerations  peculiar  to  each  line  of  roads,  that  it  seemed  impossi- 
ble to  make  the  rent  paid  upon  one  road  much  guide  for  any  other.  It  is  pos- 
sible that  in  the  course  of  years  some  approximation  towards  an  ordinary  rent 
per  mile  of  track,  or  per  mile  run,  may  be  arrived  at.  But  it  is  very  obvious 
nothing  of  the  kind  has  yet  been  attained,  and  it  seems  to  us  very  questionable 
whether  it  ever  can  be. 

5.  The  Metropolitan  Company  attempted  to  show,  from  the  analogies  in  re- 
gard to  the  use  of  the  tracks  of  steam  railways,  by  other  companies,  and  the 
rates  of  compensation,  some  data  which  might  aid  the  Commissioners  in  arriving 
at  a  correct  estimate  of  compensation  in  the  present  case.  But  the  Commis- 
sioners failed  to  perceive  any  satisfactory  ground  whereby  these  analogies  could 
be  made  to  apply  to  the  present  case.  The  motive  power  upon  steam  railways 
being  such  that  it  requires,  for  safety  and  success,  to  be  under  the  control  of  a 
single  agency,  it  does  not  admit  of  allowing  such  companies,  to  any  great  extent, 
to  run  their  engines  and  cars  over  other  lines  than  their  own.  Hence,  where 
passengers  or  freight  are  carried  by  one  road  for  other  connecting  lines,  it  is 
done,  most  commonly,  by  means  of  their  own  motive  power,  and  an  allowance 
is  made  for  the  use  of  cars,  and  conductors  in  some  instances,  and  for  patronage 
possibly.  But  the  rate  is  seldom  fixed  for  the  use  of  the  track  alone.  It  is  more 
commonly  determined  by  a  division  of  fare  and  freight,  in  such  proportion  as 
shall  seem  just  in  the  particular  case,  and  with  reference  to  circumstances,  many 
of  which  are  not  of  general  application  to  other  cases,  so  that  very  little  aid  is 
to  be  obtained  often,  even  in  regard  to  a  case  upon  steam  railways,  from  the  rule 
adopted  in  others,  much  less  in  regard  to  the  rate  of  compensation  for  the  use 
of  the  track  of  street  railways. 

The  commissioners,  after  a  good  deal  of  time  spent  in  the  hearing,  and  a  very 
careful  examination  of  all  the  testimony  given  before  us,  and  of  all  the  views 
presented  by  the  parties  and  their  counsel,  came  to  the  conclusion  that  the 
proper  mode  of  estimating  compensation  in  this  case,  was  to  ascertain  the  cost 
of  the  track  used,  and  of  superintendence  ;  the  expense  of  the  repairs  and  tend- 
in^,  and  the  probable  deterioration,  and  the  expense  of  clearing  track,  and  the 
extent  of  use,  and  to  require  all  parties  concerned  in  such  use  to  contribute 
ratably  towards  the  expense  of  maintaining  such  track. 

We  had  no  doubt  the  company  building  the  track  must  be  regarded  as  having 
a  property  in  it.  And  although  it  may  not  be  a  matter  altogether  free  from  em- 
barrassment, to  give  a  satisfactory  definition  of  the  precise  nature  of  the  rights 
and  interest  of  such  company  in  their  track  in  all  respects,  it  is  nevertheless 
clear  to  the  minds  of  the  commissioners,  from  the  decisions  already  made  in  this 
commonwealth,  and  in  other  states,  that  such  track  must  be  regarded  as  in  the 


COMPENSATION  FOR  USE  OF  OTHER  TRACKS.       639 

nature  of  private  property,  and  that  it  cannot  be  fairly  considered,  as  in  any 
just  sense,  devoted  by  the  makers  to  public  uses.  Hence  we  do  not  understand 
that  it  is  competent  for  any  person,  natural  or  corporate,  at  his  mere  will,  to  ap- 
propriate the  track  of  a  horse  railway  company  to  his  own  private  use  and  con- 
venience, by  adapting  his  carriage  to  such  use  for  that  purpose ;  if  that  were 
established  it  would  go  far  towai'ds  the  recognition  of  the  claim  of  the  Broadway 
Company,  that  no  compensation  could  justly  be  awarded  by  the  commissioners 
in  the  present  case.  But  the  commissioners  regard  the  track  and  its  accessories, 
although  laid  in  the  public  highway,  as  constituting  an  important  estate  in  the 
company  to  which  it  belongs.  And  where  it  is  built  or  maintained  for  the  con- 
venience and  use  of  two  or  more  companies,  it  is  obvious,  as  it  seems  to  us,  that 
no  more  simple,  natural,  or  just  mode  of  estimating  compensation  for  its  use  can 
be  suggested  than  to  divide  the  expense  necessarily  incurred  in  its  maintenance 
and  use,  according  to  the  use. 

In  the  present  case  we  have  found  some  difficulty  in  determining  the  neces- 
sary expense  of  maintaining  this  circuit  in  such  a  manner  as  to  make  it  alto- 
gether satisfactory  to  our  own  minds.  The  principal  difficulty  has  arisen  in 
regard  to  the  expense  incurred  by  the  Metropolitan  Company  in  complying 
with  the  conditions  annexed  by  the  city  government  to  the  location  of  their 
track  in  this  circuit  in  regard  to  paving  and  improving  the  streets  through  which 
it  passes.  This  company  were  by  these  conditions  required  to  pave  the  entire 
street  for  long  distances,  and  to  contribute  large  sums  towards  the  expense  of 
widening  streets,  and  the  company  were  compelled  to  comply  with  such  condi- 
tions, without  questioning  either  their  legality  or  their  reasonableness,  since  the 
municipal  authorities  unquestionably  had  an  absolute  and  irresponsible  discre- 
tion in  regard  to  the  terms  upon  which  they  would  suffer  the  track  to  be  laid  or 
continued  in  such  streets,  and  it  was  not  therefore  material  to  inquire  how  far 
their  requirements  were  legal  or  not,  as  they  could  at  any  moment  require  the 
track  to  be  removed  unless  all  the  conditions  they  saw  fit  to  name  were  strictly 
and  promptly  complied  with. 

But  it  was  claimed  by  the  Broadway  Company  that  these  requirements  were 
a  kind  of  official  extortion,  which  being  wholly  without  warrant  of  law,  could 
not  justly  be  taken  into  the  account  of  the  legitimate  expense  of  maintaining 
the  track  of  this  circuit.  But  the  commissioners  were  not  sufficiently  satisfied 
of  this  to  feel  justified  in  excluding  it  from  the  estimate  of  the  cost  of  maintain- 
ing the  track  in  this  circuit.  And  whatever  might  be  thought  of  its  entire 
legality,  there  could  be  but  one  opinion  in  regard  to  its  necessity,  since  no 
tribunal  could  possibly  control  the  action  of  the  municipal  authorities  in  regard 
to  the  subject. 

There  can  be  no  doubt  that  such  arbitrary  exactions  are  very  liable  to  abuse, 
and  are  therefore  naturally  calculated  to  excite  in  the  public  mind  the  suspicion 
of  such  abuse.  And  where  a  railway  company  is  allowed  to  lay  its  track  in  the 
street,  upon  the  condition  of  assuming  the  burden  of  paving  the  entire  street  as 
far  as  the  track  extends,  or  for  large  portions  of  it,  and  of  paying  large  sums  to- 
wards the  improvement  of  the  streets,  by  widening  or  otherwise,  through  which 
the  track  runs,  it  has  no  doubt  somewhat  the  appearance  of  going  beyond  the 


640  STREET   RAILWAYS. 

mere  remedying  the  inconvenience  caused  by  its  own  works,  and  some  views 
may  be  taken  in  regard  to  it  which  give  it  the  appearance  of  being  the  price  of 
the  grant.  But  courts  and  their  instruments  are  bound,  we  suppose,  to  view 
such  transactions,  with  a  charitable  disposition  to  maintain  and  justify  them  upon 
allowable  grounds.  And  in  this  view  it  seemed  to  the  commissioners  that  there 
was  no  satisfactory  proof  in  the  case  that  these  burdens  were  not  imposed  in 
good  faith,  and  that  they  might  not  justly  be  regarded  as  rendered  necessary, 
in  some  sense,  and  to  some  extent,  in  consequence  of  the  privilege  granted  to 
these  companies  to  use  their  cars  through  these  streets. 

And  as  it  was  certainly  a  burden  which  the  Metropolitan  Company  could  not 
escape,  as  before  stated ;  and  as  the  privilege  accorded  to  these  companies  is  one 
of  a  very  burdensome  and  offensive  character,  so  far  as  other  public  travel  is 
concerned  ;  and  one  which  would  not  be  likely  to  meet  with  much  indulgence 
from  the  public,  if  it  were  not  for  the  very  great  accommodation  thus  afforded 
to  a  class  of  persons  who  do  not  use  the  public  streets,  with  carriages,  to  any 
great  extent  in  other  modes,  it  seemed  to  us  that  the  companies  using  this  circuit 
could  not  justly  require  to  be  exempted  from  their  proportionate  contribution 
towards  this  expense.  And  the  last  consideration  adverted  to  might  justly 
seem  to  require  the  city  authorities  to  be  watchful  that  such  privileges  were  not 
given  these  companies  except  upon  the  condition  that  they  indemnify  fully 
against  all  expense  fairly  attributable,  either  directly  or  indirectly,  to  their 
peculiar  use  of  the  street.  And  so  far  as  it  may  fairly  be  considered  doubtful 
whether  the  burdens  imposed  upon  the  Metropolitan  Company  are  not  fair  and 
legitimate,  the  commissioners  are  bound  to  regard  them  as  being  so.  We  have 
therefore  included  this  expenditure  in  the  estimate  of  the  cost  of  the  track  along 
this  circuit,  and  have  taken  the  expense  of  maintaining  the  pavement  into  ac- 
count, in  estimating  the  expense  of  maintaining  the  track. 

We  call  the  cost  of  building  the  track  in  this  circuit,  ac- 
cording to  the  requirements  of  the  charter,          .         .     $  21,000  00 
Expense  of  paving  and  other  business  imposed,           .  24,04.7  96 

Cost  of  curves  and  engineering, 1,150  00 

846,197  96 

Interest  upon  capital  thus  invested,      .         .         .         .         $  2,770  97 

Snow  expenses,  by  estimation, 1,200  00 

Repairs  of  track, 750  00 

Depreciation  of  track 750  00 

Repairs  and  deterioration  of  paving      ....  2,000  00 
Policeman,  trackman,  and  guarder,  and  contingent  ex- 
penses of  tending  track,         1,500  00 

Allowance  to  company  for  general  supervision,  including 
proportion  of  salaries,  law  expenses,  and  other  matters 
not  susceptible  of  clear  definition,  but  which  will  inevi- 
tably occur  in  numerous  ways, 3,000  00 

$11,970  97 


COMPENSATION  FOR  USE  OF  OTHER  TRACKS.       641 

One  fifth  of  this  sum,  we  think,  should  be  paid  by  the  Broadway  Company 
annually  to  the  Metropolitan  Company,  beginning  from  the  date  of  the  petition 
in  this  case,  $  2,394.19.  And  if  the  commissioners  have  any  jurisdiction  to  de- 
termine the  rate  of  compensation  before  the  date  of  the  petition,  which  from  a 
hasty  examination  would  not  seem  to  be  the  case,  we  should  fix  the  same  rate 
of  compensation  in  proportion  to  the  time  from  the  first  entry  of  the  Broadway 
Company  upon  the  track  of  the  Metropolitan  Company,  which  was  on  the  15tha 
day  of  September,  1861. 

We  have  allowed  nothing  for  counsel  fees  in  estimating  the  cost  of  this  circuit, 
because  we  regarded  such  expense  as  chiefly  the  result  of  the  controversy  be- 
tween the  companies,  and  presume  that  similar  expenses  were  incurred  by  both 
companies,  and  after  the  controversy  had  been  compromised  by  mutual  conces- 
sions, we  judged  it  to  be  fairly  within  the  spirit  of  the  compromise  that  the  ex- 
penses of  the  controversy  should  not  be  brought  into  the  future  dealings  of  the 
parties,  but  should  set  off  against  each  other. 

Some  claim  was  made  by  the  Metropolitan  Company  on  account  of  their 
greater  exposure  to  claims  for  damages  occurring  along  this  circuit  to  persons  or 
their  vehicles,  in  consequence  of  the  streets  being  more  crowded  by  the  frequent 
passing  of  teams,  resulting  from  the  use  of  the  track  here  by  so  many  companies. 
But  the  commissioners  did  not  make  any  separate  allowance  on  this  account,  be- 
cause it  was  extremely  difficult  of  estimation,  and  did  not  seem  to  rest  upon  any 
sufficient  legal  basis.  For  if  injuries  complained  of  resulted  from  the  negligence 
of  one  company  or  the  other,  or  their  servants,  it  should  fall,  and  must  fall,  if  the 
claim  were  enforced  by  legal  steps,  upon  the  company  in  default.  And  if  such 
claims  were  not  founded  upon  any  legal  default  of  any  party,  they  could  not  be 
regarded  as  legal  claims,  and  the  settlement  of  them  being  a  voluntary  payment 
in  order  to  buy  peace,  could  not  form  the  basis  of  a  legal  claim  against  any  one. 
But  the  commissioners  had  no  doubt  the  Metropolitan  Company  would  be  pre- 
sented with  some  claims  of  this  character  every  year,  which  they  might  choose  to 
pay  rather  than  contest  them,  and  which  it  might  be  prudent  to  meet  in  this 
mode,  and  that  the  expense  thus  incurred  might  be  increased  to  some,  extent  by 
reason  of  the  use  of  this  circuit  by  so  many  companies.  We  could  only  meet 
this,  if  in  any  mode,  by  a  pretty  liberal  compensation  for  general  supervision, 
which  we  have  allowed.  In  this  we  thought  it  just  to  take  into  account  the 
fact  that  the  company  owning  the  line,  used  in  common  by  other  lines,  neces-* 
sarily  must  be  subjected  to  many  outgoes,  not  fairly  attributable  to  any  specific 
duty,  or  breach  of  duty,  and  which  nevertheless  must  be  met,  and  should  be 
compensated  in  some  way  by  those  who  have  the  common  use,  and  consequently 
contribute  their  share  in  bringing  those  outgoes  upon  the  primary  company. 

The  Commissioners  had  under  consideration  the  question  of  the  diversion  of 
passengers  from  the  Metropolitan  Company  by  the  Broadway  Company  being 
allowed  to  run  their  cars  upon  this  circuit,  and  which  passengers  would  other- 
wise naturally  go  upon  the  Metropolitan  Company's  cars.  We  had  no  doubt 
such  diversion  took  place  to  a  considerable  extent.  But  we  were  not  prepared 
to  say  that  the  Metropolitan  Company  could  require  the  loss  thus  sustained  to 
be  included  in  the  estimate  of  compensation  for  the  use  of  their  track.  We 
VOL.  I.  41  0 


642  STREET   RAILWAYS. 

thought  it  could  not  be  thus  included,  and  if  we  were  wrong  in  our  view,  there 
should  be  added  to  the  estimated  compensation  at  least  $  300  annually.  The 
Commissioners  considered  that  the  Broadway  Company  had  acquired  the  legal 
right  to  take  up  and  carry  passengers  from  any  one  point  to  any  other  point 
upon  their  whole  route,  including  this  circuit. 

This  view  of  the  case  suggested  to  the  Commissioners  in  ordinary  cases,  where 
one  company  is  allowed  to  drive  its  carriages  over  the  track  of  another  company 
by  means  of  its  own  motive  power,  whether  upon  steam  or  horse  railways,  the 
necessity  of  providing  against  any  diversion  of  the  natural  and  legitimate  busi- 
ness of  the  company  owning  the  track.  This  is  effected  more  readily  upon 
steam  than  upon  horse  railways ;  and  the  company  exposed  to  loss  has  a  more 
obvious  check  upon  the  other.  In  the  case  of  horse  railways,  where  passengers 
are  taken  up  and  set  down  at  every  point  upon  the  line,  and  where  the  public 
accommodation  would  seem  to  require  that  every  company  passing  along  the 
line  should  be  allowed  to  do  this,  it  will  be  more  difficult  to  keep  the  amount, 
and  the  company  exposed  to  loss  has  no  natural  check  upon  the  other. 

The  Commissioners  suppose  it  was  not  the  intention  of  the  legislature  to  al- 
low foreign  companies  entering  upon  the  track  of  those  companies  owning  and 
maintaining  it,  to  divert  the  business  primarily  and  legitimately  belonging  to 
such  company. 

But  as  the  circuit  in  question  seems  to  be  the  natural  outlet  of  a  considerable 
number  of  horse  railroad  companies  centring  in  Boston,  and  the  use  of  it  seems 
necessary  to  enable  such  companies  to  accomplish  satisfactorily  the  proper  busi- 
ness for  which  they  were  incorporated,  the  Commissioners  regarded  it  more  in 
the  nature  of  an  investment  for  the  common  benefit  of  all  these  companies,  than 
in  ordinary  cases.  In  the  common  case  of  one  company  being  allowed  to  run 
its  cars  over  the  road  of  another,  it  would  seem  requisite,  in  order  to  effect  per- 
fect justice  between  them,  that  the  company  owning  the  track  should  be  indem- 
nified for  any  diversion  of  its  own  legitimate  business ;  and  we  submit  whether 
or  no  it  should  be  so  in  the  present  case. 

We  have  thought  that  the  increasing  interest  in  Street  Railways  would  justify 
the  insertion  at  this  place  of  a  large  portion  of  our  carefully  prepared  report  to 
the  legislature  of  Massachusetts  on  that  subject. 

The  subjects  of  the  commission  discussed  in  detail. 

1.  Until  perfection  is  reached,  the  exact  relations  of  the  municipalities  and  street  railways 

cannot  be  strictly  defined.     Scope  is  required  for  development  and  growth. 

2.  We  do  not  regard  the  interests  of  towns  and  cities  as  opposed  to  that  of  street  railways. 

3.  Caution  required  to  be  used  in  regard  to  concessioiis  of  public  right. 

4.  Reserve  in  regard  to  concessions  to  private  interests  of  great  magnitude  and  success,  ex- 

cusable.    Tins  may  be  done,  in  excess.     Primary  control  of  streets,  and  idtimate  con- 
trol, if  practicable,  should  remain  with  municipalities. 

5.  Relations  of  street  railways  to  each  other,  and  to  the  use  of  streets  by  other  vehicles,  frc. 

( 1 . )  Rule  of  compensation  where  one  road  uses  the  track  of  another,  without  doing  any 

competing  business. 
(2.)   The  best  mode  of  accommodating  other  travel  to  street  railways. 
(3.)   The  gauge  of  street  railways  and  other  carriages,  should  be  the  same. 


RELATIONS   TO   TOWNS   AND   CITIES.  643 

(4.)  Paving  street  and  three  feet  on  each  side,  fully  indemnifies  the  cities  and  towns,  in 
ordinary  cases. 

(5.)  Railways  should  not  be  allowed  in  street,  unless  room  for  two  tracks,  and  for  car- 
riages to  stand,  and  others  pass  on  either  side. 

(6.)   Street  railways  should  be  restricted  ivithin  these  reasonable  limits,  in  laying  new 
tracks.     Improvements  suggested  in  Boston. 
6.  Further  discussion  of  the  use  of  tracks  by  different  companies. 

(1.)  Branch  lines  should  account  for  the  net  prof  ts  of  all  business  done  by  them  exclu- 
sively upon  the  trunk  line. 

(2.)    To  exclude  the  branch  line  from  the  trunk  might  put  it  too  much  in  the*  power  of  the 
latter. 

(3.)  Not  practicable  to  require  trunk  roads  to  draw  the  cars  of  branch  lines  over  their 
own  road,  in  all  cases. 

(4.)    The  rights  of  trunk  and  branch  lines,  upon  sound  principles  of  construction. 

(5.)    The  mode  of  estimating  compensation  in  such  cases,  recommended  by  us,  will  cure 
the  desire  to  multiply  trips. 
1.   The  relations  of  street  railways  to  other  travel ,  further  discussed. 

8.  The  propriety  of  consolidating  street  railways  in  Boston,  discussed  and  doubted. 

9.  Omnibuses  cannot,  properly,  be  excluded  from  streets  where  street  cars  are  allowed. 

10.  The  subject  of  removing  ice  and  snow  from  the  streets  discussed. 

1 1 .  Tlie  motive  power  of  street  railways.     Dummy  engines. 

(1.)   The  examination  of  these  engines.     Their  use  not  fully  tested. 
(2.)    They  will  be  exceedingly  useful  in  rural  and  suburban  districts. 
(3.)    They  occupy  but  small  space,  ascend  steep  grades  with  ease,  and  possess  great  power. 
(4.)    They  will  be  likely  to  come  into  general  use  in  light  and  short  passenger  traffic,  both 
on.  steam  and  street  railways. 

12.  Commutation  tickets.     Best  regulated  by  the  companies.     Change  recommended. 

We  shall  now  give  our  views  upon  all  the  subjects  submitted 
to  our  consideration,  in  the  Resolve  providing  for  our  appoint- 
ment, in  the  order  in  which  they  occur  in  the  Resolve. 

1.  In  regard  to  "  the  relation  of  street  railways  to  the  cities 
and  towns  in  which  the  same  are  located  "  very  much  may  be 
said  ;  and  at  the  same  time  it  has  not  appeared  to  us  judicious  to 
attempt  to  define  these  relations,  and  the  consequent  rights  and 
obligations,  with  much  strictness,  by  any  new  legislative  pro- 
visions. It  has  become  an  axiom  in  regard  to  all  the  intimate 
relations  of  life  and  business,  that  in  proportion  to  the  closeness 
of  the  relation  was  the  demand  for  flexibility  and  expansiveness 
in  the  rules,  or  laws,  under  which  the  relation  was  attempted  to 
be  maintained,  if  we  would  secure  reasonable  freedom  and  com- 
fort in  the  continuance  of  the  relation  ;  and  especially  where  we 
intend  to  give  room  and  scope  for  development  and  growth  in  the 
future.  When  we  feel  sure  that  any  system  has  reached  the 
point  of  perfection,  so  that  there  is  no  further  demand  for  space 


644  STREET   RAILWAYS- 

for  development  or  growth,  it  will  be  practicable  to  define  the 
obligations  and  duties  of  the  related  parties  with  perfect  accu- 
racy ;  but,  until  that  point  is  reached,  there  will  be  large  demand 
for  modification  and  experiment,  and  this  will  always  require  lat- 
itude and  liberality  in  the  terms  and  in  the  construction  of  the 
laws  which  we  apply  to  the  subject. 

2.  It  was  very  much  urged  upon  our  consideration  by  the  dif- 
ferent railway  companies  which  came  before  us,  that  some  mode 
should  be  devised  for  making  the  street  railways  in  some  degree 
independent  of  the  exactions  and  control  of  the  cities  and  towns 
through  which  they  passed.  There  seemed  to  be  a  feeling  as  if 
the  municipal  authorities  had  an  interest,  in  some  sense,  antag- 
onistic to  that  of  the  street  railways  within  their  limits ;  so  that 
when  the  interests  of  the  latter  were  submitted  to  the  judgment 
of  the  former,  it  was  equivalent  to  being  tried  by  an  adversary 
party.  We  have  no  question  that  this  feeling  is  very  sincerely 
entertained  by  many  of  the  officers  of  the  street  railway  com- 
panies, and  there  may  have  been  more  or  less  reason  for  the  feel- 
ing in  the  past  relations  and  experiences  of  these  two  interests, 
since  all  such  matters  are  more  likely  to  assume  the  form  of 
antagonism,  in  the  incipient  stages  of  the  growth  of  a  new  enter- 
prise, than  after  its  form  and  demands  have  become  more  fully 
developed,  and  consequently  better  understood.  But  we  have 
not  been  able  to  comprehend  why  the  municipal  boards  of  the 
towns  and  cities  stand  in  any  position  of  interest  opposed  to  street 
railways,  more  than  to  any  other,  as  extensive  and  important 
interests  within  their  limits. 

3.  It  is  undoubtedly  true  that  the  more  exclusive  the  interest 
and  occupancy  which  any  class  of  carriages  shall  require  or  de- 
mand in  the  streets,  the  more  needful  it  will  become,  and  the 
more  natural,  that  those  who  have  the  charge  of  repairing  and 
clearing  the  streets  should  exercise  watchfulness  and  circumspec- 
tion, lest  encroachments  should  imperceptibly  be  suffered  to  grow 
up  in  regard  to  other  travel.  So  also  the  larger  and  more  influ- 
ential an  interest  becomes,  and  the  greater  number  of  persons 
who  are  interested  in  its  continuance  and  extension,  the  more 
difficult  it  will  be  to  retrace  any  step  of  indulgence  once  con- 
ceded to  such  interest ;  and  consequently  there  will  exist  the 
greater  need  of  caution  in  regard  to  making  concessions  to  it, 


RELATIONS   TO   TOWNS   AND   CITIES.  645 

lest  acquiescence  and  forbearance,  which  were  intended  as  mere 
courtesies  or  accommodation  at  first,  might  subsequently  be  urged 
as  the  basis  of  rights.  Hence  the  municipal  authorities  may 
sometimes  feel  compelled,  no  doubt,  to  exercise  a  more  rigorous 
oversight,  and  a  more  minute  inspection  and  pertinacious  spirit 
of  insisting,  in  regard  to  small  matters,  in  the  use  of  the  streets 
by  railways,  than  in  regard  to  any  other  mode  of  use. 

4.  And  we  suppose  it  is  too  well  understood  to  require  repe- 
tition here,  that  all  private  interests  become  more  and  more 
aggressive  upon  public  interest  in  proportion  to  the  magnitude 
and  success  of  such  interests;  and  hence  the  .municipalities, 
without  intending  any  unjust  discrimination,  may  very  naturally 
have  manifested  extraordinary  reluctance  to  yield  to  the  demands 
of  the  street  railway  companies  ;  and  in  granting  them  locations 
and  other  necessary  privileges  in  the  streets,  they  may  have  at- 
tached such  limitations  and  conditions  as  seemed  to  the  companies 
unreasonably  onerous,  without  really  having  intended  any  in- 
justice. And  we  are  bound  also  to  say,  both  from  the  testimony 
before  us  and  the  common  experience  upon  the  subject,  that  there 
have  no  doubt  occurred  some  instances  where  unjust  and  unrea- 
sonable exactions  have  been  made  upon  these  railway  companies 
by  way  of  exorbitant  services  in  return  for  grants,  which,  if  not 
exactly  matter  of  course,  and  to  be  conceded  without  limitation 
or  reserve,  should  certainly  have  been  conceded  upon  much  more 
favorable  terms,  if  conceded  at  all.  And  from  what  we  have  seen 
and  learned,  in  regard  to  matters  of  this  character,  we  should 
expect  that  such  instances  of  abuse  would  be  likely  to  occur  oc- 
casionally in  the  future ;  as  it  is  matter  of  common  experience 
with  the  majority  of  men,  and  especially  those  who  are  in  posi- 
tions, where  the  favorable  opinion  of  the  multitude  is  in  the 
nature  of  an  estate,  very  valuable  and  desirable  to  be  secured, 
that  there  will  be  much  less  anxiety  about  giving  offence  or  the 
color  of  complaint  to  any  person,  natural  or  corporate,  which  is 
not  in  condition  to  retaliate  the  affront,  than  if  it  were  otherwise. 
Hence  we  have  included  among  the  additional  legislative  pro- 
visions which  we  have  recommended,  such  safeguards  against  all 
such  possible  abuse  as  seemed  to  us  most  likely  to  secure  the 
street  railway  companies  in  the  future  against  all  injustice,  with- 
out intending  to  restrict  the  primary  control  of  the  municipal 


646  STREET   RAILWAYS. 

authorities  over  the  streets  and  highways  within  their  limits. 
This  primary  control  of  the  use  of  the  streets  and  highways  by 
every  species  of  vehicle,  seems  to  us  altogether  indispensable  in 
the  municipal  authorities,  in  order  to  secure  the  efficient  admin- 
istration of  the  police  in  such  places ;  and  it  has  also  appeared  to 
us,  that  it  would  be  liable  to  create  too  much  embarrassment  and 
delay  in  such  administration,  if  appeals  were  allowed  in  every 
instance  from  any  order  made  by  the  municipal  authority  upon 
such  street  railways.  We  have  endeavored  to  preserve  the  proper 
medium. 

5.  "  The  relations  of  street  railways  to  each  other,  and  to  the 
use  of  the  streets  by  ordinary  vehicles,  and  the  whole  matter  of 
the  conveyance  of  passengers  through  the  streets  by  horse-cars 
and  omnibuses,"  form  the  next  department  of  our  commission  ; 
and  this  it  will  be  convenient  to  consider  under  separate  divisions. 

(1.)  "  The  relations  of  connecting  street  railways  to  each 
other."  This  is  an  important  and,  as  it  has  seemed  to  us,  a 
somewhat  difficult  problem.  There  is  no  great  difficulty  iu  re- 
gard to  street  railways  converging  to  a  common  centre,  and  where 
there  is  no  direct  competition  in  the  different  lines  of  travel  to- 
wards that  central  point.  In  such  cases  where  it  becomes  neces- 
sary or  convenient,  in  order  to  reach  the  common  centre  of  traffic, 
for  one  company  to  use  the  track  of  another  company  for  a  greater 
or  less  distance,  within  such  limits  as  not  to  create  a  competing 
business,  it  should  always  be  granted  by  the  legislature  upon 
condition  of  making  reasonable  compensation.  The  obvious  rule 
of  equitable  compensation  in  all  such  cases  seems  to  be  the  pay- 
ment of  interest  upon  a  portion  of  the  capital  invested  in  the 
track  proportionable  to  the  use,  and  a  proportional  part  of  the 
expense  of  supervision  and  repair,  and  of  the  deterioration  of  the 
same.  This  seems  to  us  more  just,  and  more  strictly  following 
out  the  analogies  of  the  property  and  the  public  rights  than  either 
of  the  other  possible  rates  of  compensation,  i.  e.  by  paying  a  sum 
equal  to  the  injury  done  the  track  by  the  use,  or  by  paying  ac- 
cording to  the  benefit  derived  from  the  use. 

(2.)  We  come  to  this  conclusion  because  we  regard  street 
railway  tracks,  by  whomsoever  built,  as  in  the  nature  of  a  com- 
mon highway.  And  although  the  first  company  to  whom  such  a 
grant  is  made  by  the   legislative  authority  unquestionably  ac- 


COMPENSATION  FOR  USING  TRACK  OF  OTHER  COMPANY.   647 

quires  a  franchise  of  a  corporate  character  in  this  mode  of  trans- 
portation, and  an  exclusive  franchise  to  some  extent,  this  exclu- 
sive franchise  only  extends  to  the  use  of  the  tracks  in  this  precise 
manner,  i.  e.  for  transporting  passengers  in  cars  for  hire  or  toll. 
It  seems  certain  that  such  grants  are  not  intended  to  exclude 
ordinary  vehicles  from  using  the  rails  longitudinally  for  the  pur- 
pose of  passage,  or  to  exclude  ordinary  vehicles  from  being  so 
made  or  altered  as  to  conform  to  the  gauge  of  the  tracks,  so  as  to 
run  the  wheels  of  such  carriages  upon  the  tram  of  the  rails.  In 
some  of  the  cities  in  other  states  the  gauge  of  the  street  railways 
was  originally  fixed  at  such  a  width  as  to  invite  the  ordinary 
travel  in  carriages  into  the  same  lines  with  the  cars  used  by  the 
company.  And  where  the  streets  are  of  sufficient  width  to  allow 
of  two  railway  tracks,  and  it  becomes  necessary  to  allow  a  rail- 
way to  occupy  such  street  at  all,  it  would  unquestionably  conduce 
very  much  to  the  quiet  and  good  order  of  the  travel  in  such 
street  to  invite  all  the  travel,  in  each  direction,  into  a  single  cur- 
rent upon  each  of  the  tracks  of  the  railway,  in  the  same  direction 
as  the  cars  pass.  This  is  done  by  force  of  city  ordinances  in  some 
of  the  cities,  and  is  found  very  useful ;  and  in  some  of  the  states 
it  is  effected  by  special  statute. 

(3.)  This  brings  up  the  question  of  the  gauge  of  street  rail- 
ways as  compared  with  the  width  of  ordinary  carriages.  And  it 
seems  to  us  that  if  the  question  were  new  it  could  not  fail  to 
meet  the  approbation  of  all,  to  require  the  gauge  of  street  rail- 
ways to  conform  to  that  of  ordinary  carriages,  as  has  been  done 
in  some  states.  But  this  would  now  be  impracticable  in  this 
Commonwealth  without  great  loss  and  expense  to  the  companies 
whose  tracks  are  laid.  Carriages  may  be  conformed  to  the  rail- 
way gauge,  but  that  might  be  a  detriment  to  the  carriages.  We 
must  probably  now  be  content  to  let  it  follow  the  natural  course 
of  interest  and  convenience.  We  have  not  embraced  in  the  bill 
reported  by  us  any  provision  upon  the  subject.  But  wherever 
the  carriages  and  railways  in  the  streets  can  be  brought  to  the 
same  gauge,  and  two  tracks  instead  of  one  be  laid  in  the  same 
street,  we  should  regard  it  as  the  most  judicious  arrangement 
which  could  be  made  for  the  accommodation  of  street  railways. 
Under  such  an  arrangement  it  does  not  seem  to  us  that  the  street 
railways,  by  maintaining  that  portion  of  the  street  covered  by 


648  STREET   RAILWAYS. 

their  tracks  and  a  reasonable  distance  on  either  side,  three  feet 
perhaps,  could  prove  much  detriment  to  the  streets.  It  has  ap- 
peared to  us  that,  under  such  an  arrangement,  they  would  be 
likely  to  prove  more  a  benefit  than  a  burden  to  the  cities  and 
towns  where  they  exist.  The  bill  reported  embraces  a  provision 
of  this  character. 

(4.)  And  we  have  n6  question  that,  where  a  single  track  is 
laid  in  a  street  of  sufficient  width  to  allow  of  carriages  passing 
on  either  side,  without  coming  so  near  the  curb-stones  as  to  inter- 
fere with  carriages  remaining  stationary  along  the  sidewalks,  the 
obstruction  would  be  but  slight,  unless  the  street  was  very  much 
thronged.  In  such  cases  it  is  probable  the  paving  of  the  portion 
of  the  street  occupied  by  the  track,  and  three  feet  on  each  side, 
would  be  a  full  compensation  for  the  privilege,  and  might  even 
leave  the  municipalities  in  better  pecuniary  condition  than  if  no 
such  track  had  been  laid. 

(5.)  We  have  been  forcibly  impressed  with  the  absurdity  of 
allowing  a  railway  track  in  a  street,  so  narrow,  that  there  is  not 
sufficient  room  for  a  carriage  upon  either  side  to  stand  comfort- 
ably, which  is  sometimes  done,  as  was  shown  before  us.  And  we 
have  felt,  that  where  it  could  be  done,  the  street  railway  tracks, 
in  the  cities  and  populous  towns,  should  be  restricted  to  those 
streets  which  are  of  sufficient  width  to  allow  of  two  tracks,  in  the 
manner  already  explained ;  and  that  no  railway  track  should  be 
allowed  in  any  street  not  of  sufficient  width  to  allow  the  passage 
of  carriages  upon  either  side,  without  interfering  with  carriages 
standing  near  the  sidewalks  ;  or  if  allowed,  it  should  only  be  done 
as  matter  of  strict  necessity,  and  to  the  least  possible  extent. 

(6.)  If  the  tracks  of  street  railways  are  restricted  within  these 
reasonable  limits,  it  does  not  appear  to  us  that  they  will  produce 
any  such  obstruction  to  the  orderly  progress  of  other  travel,  as  to 
become  a  just  occasion  of  complaint.  But  where  they  are  allowed 
in  streets  narrower  than  already  intimated,  we  feel  confident  they 
must  prove  a  considerable  obstruction  to  other  travel.  And  while 
we  deem  it  expedient  to  leave  the  primary  power  of  location  with 
the  municipal  authority,  and  without  restriction,  we  should  cer- 
tainly regret  to  see  street  railways  laid  in  the  crowded  and  nar- 
row thoroughfares  of  any  of  the  towns  or  cities  of  the  Common- 
wealth.    We  believe  that  if  the  railway  tracks  and  the  omnibus 


RESTRICTIONS   IN   LAYING   TRACKS   IN   STREETS.  649 

lines  could  be  removed  from  the  lower  end  of  Washington  Street, 
in  the  city  of  Boston,  it  would  prove  a  great  convenience  and 
comfort  to  the  other  travel  there,  both  in  carriages  and  on  foot. 
We  are  not  able  to  say  that  this  is  now  practicable,  without  too 
serious  an  embarrassment  in  regard  to  street  railway  and  omnibus 
travel.  But  if  the  thing  had  been  considered  early  enough,  we 
believe  it  might  have  been  effected,  without  any  such  inconven- 
ience to  that  travel  as  ought  to  be  regarded  as  any  ground  of 
complaint.  It  seems  to  us  better  that  such  public  modes  of  con- 
veyance should  be  kept  out  of  the  most  crowded  thoroughfares, 
and  especially  the  street  railways,  which  cannot  be  made  to  pass 
except  upon  an  inflexible  line.  It  ought  not,  and  need  not  be 
regarded,  as  any  just  ground  of  complaint,  that  passengers  cannot 
always  be  taken  up  and  set  down,  at  the  precise  point  where  they 
most  desire  it.  There  must  be  some  limitation  upon  these  public 
accommodations,  by  way  of  passenger  transportation,  short  of  the 
wishes  of  those  most  nearly  concerned,  or  it  would  compel  the 
surrender  of  the  entire  streets,  and  all  the  travelling  transporta- 
tion, to  this  particular  species,  which  of  course  will  not  be  ex- 
pected. These  things  must  be  made  to  accommodate  themselves 
to  existing  necessities,  and  it  need  not  be  required,  to  push  a 
railway  car  into  the  most  public  places  of  concourse,  in  order  to 
tempt  passengers  to  embark  upon  it.  If  the  railway  is  of  sub- 
stantial accommodation  to  an  important  course  of  travel,  and  its 
line  passes  within  reasonable  distance  of  the  ultimate  destination 
of  such  travel,  there  need  be  no  anxiety  about  securing  all  the 
travel  which  really  demands  any  such  accommodation.  And  we 
believe  the  great  anxiety  to  push  the  lines  of  street  railways  into 
the  very  centres  of  public  concourse,  arises  a  good  deal  from  an 
apprehension  of  competition,  either  from  omnibuses,  or  other 
railways,  unless  that  is  done.  But  the  conveniences  and  comfort 
of  omnibus  travelling  are  not  such  as  to  operate  as  a  serious  com- 
petition against  the  far  greater  comforts  and  conveniences  of 
street  railways,  except  in  particular  cases,  and  to  a  very  limited 
extent,  and  where,  for  some  reason,  they  are  able  to  give  a  special 
advantage  in  some  other  particular. 

6.  "  The  relation  of  connecting  street  railways  to  each  other," 
has  been  anticipated,  so  far  as  different  lines  converge  to  a  com- 
mon centre,  and  where  one  road  desires  to  use  the  track  of 


650  STREET   RAILWAYS. 

another  company  only  to  the  extent  of  reaching  that  centre  with 
its  own  traffic,  without  doing,  in  any  sense  or  to  any  extent,  a 
competing  business.  Beyond  this,  it  is  rather  a  perplexing  prob- 
lem to  define  with  clearness  and  certainty  the  best  rule  for  the 
use  of  one  railway  company's  track  by  another  company.  It 
seems  to  be  indispensable  to  allow  the  traffic  of  one  company  to 
pass  over  the  track  of  all  intervening  roads  in  order  to  reach  its 
ultimate  and  legitimate  destination.  If  this  were  not  done,  it 
would  leave  the  traffic  of  the  branch  roads  so  entirely  at  the 
mercy  of  the  trunk  lines,  as  to  give  them  the  power,  and  the 
motive,  to  make  an  unequal  discrimination  in  their  own  favor. 
And  to  such  an  extent  would  this  be  liable,  and  likely,  to  be  car- 
ried, that  it  must  seriously,  if  not  fatally,  affect  the  interests  of 
such  branch  lines.  So  that  all  the  witnesses  before  us,  in  the 
interests  of  branch  railways,  concurred  in  the  opinion  that  the 
right  to  run  their  cars  upon  the  track  of  the  trunk  roads  was 
indispensable  to  the  reasonable  security  of  their  rights.  But  this 
necessity  only  extends  to  the  transporting  of  such  passengers  as 
these  branch  roads  take  up  or  set  down  upon  their  own  lines,  and 
would  not  naturally  extend  to  that  portion  of  the  traffic  which  is 
strictly  limited  to  the  trunk  line,  i.  e.  where  it  begins  and  ends 
upon  that  line.  We  think  that  traffic  which  comes  so  near  the 
line  of  the  trunk  as  to  be  attracted  to  it,  without  the  existence  of 
the  branch;  but  which  nevertheless  comes  upon  the  branch  before 
it  reaches  the  trunk,  and  also  that  which  goes  from  the  trunk 
line,  but  is  destined  to  points  beyond  the  trunk,  and  upon  the 
branch,  must  be  regarded  as  the  legitimate  traffic  of  the  branch, 
and  which  it  may  properly  transport  upon  the  trunk,  without  in- 
curring the  imputation  of  carrying  on  a  competing  business.  To 
this  extent  we  have  already  indicated  our  views  in  regard  to  the 
propriety  of  allowing  the  branch  lines  to  use  the  trunk  lines,  and 
the  basis  upon  which  compensation  should  be  allowed  for  such 
use. 

(1.)  But  beyond  this  we  have  found  it  difficult  to  define  with 
exact  precision  any  general  rule.  It  is  certain  that  no  branch 
line  should  be  granted  or  built,  where  it  is  expected  to  maintain 
itself,  to  any  considerable  extent,  by  the  profits  arising  from  the 
traffic  on  the  trunk  road.  The  doing  of  such  business  is  a  matter 
wholly  incidental  to,  and  not  to  be  taken  into  the  account,  in 


MODE   OF  ESTIMATING   USE   OF   OTHER   TRACKS.  651 

determining  the  necessity  or  propriety  of  creating  a  branch  rail- 
way. All  the  traffic  upon  the  trunk,  both  from  the  fair  construc- 
tion of  the  grant,  and  the  nature  of  the  case,  legitimately  belongs 
to  the  trunk  line,  unless,  as  before  stated,  it  either  comes  from, 
or  is  destined  to,  some  point  upon  the  branch.  As  to  all  the 
traffic  which  begins  and  ends  upon  the  trunk,  the  branch  is  an 
intruder  when  it  attempts  to  engross  it,  or  indeed  to  do  any  part 
of  it,  with  any  view  to  profit.  So  far  as  this  portion  of  the  traffic 
is  concerned,  the  branch  roads  should  account  to  the  company 
owning  the  trunk  line,  for  all  net  profits  above  the  fair  cost  of 
transportation.  And  we  have  recommended  a  provision  to  that 
effect. 

(2.)  It  was  made  a  question  before  us,  whether  one  street 
railway  should  ever  be  allowed  to  run  its  cars  over  the  track  of 
another  company,  where  a  competing  business  existed  to  any 
considerable  extent,  and  it  was  attempted  to  be  likened  to  the 
case  of  one  steam  railway  driving  its  engines  and  cars  over  the 
track  of  another  company,  which  is  now  prohibited  by  statute 
in  this  Commonwealth.  But  the  cases  are  by  no  means  similar. 
There  is  no  such  danger  of  injury  to  the  passengers,  and  there  is 
no  such  claim  to  exclusive  property  and  use  of  the  track,  as  in 
the  case  of  steam  railways. 

(3.)  We  have  no  doubt  that  the  business  of  one  street  railway 
which  required  to  pass  over  the  line  of  another  company,  might 
be  sufficiently  accommodated,  by  allowing  the  latter  company  to 
attach  its  own  motive  power  to  the  car  of  the  first  company,  and 
thus  draw  it  over,  performing  such  traffic  upon  its  own  road  as  it 
could  conveniently  do,  at  the  same  time.  And  we  have  not  been 
able  to  perceive  any  good  reason  why  the  traffic  upon  branch 
lines  may  not,  ordinarily,  be  sufficiently  accommodated  in  this 
manner.  But  as  the  rates  of  compensation  in  that  mode  of 
effecting  the  object  would  be  very  difficult  to  fix,  either  with 
reference  to  distance  or  number  of  passengers,  or  the  use  of  such 
car  for  other  passengers,  thus  necessitating  an  agreement  of  the 
parties  or  a  reference  to  commissioners,  we  have  deemed  it  more 
just  and  prudent  to  leave  the  matter  open.  Unless  some  statute 
law  could  be  enacted  containing  such  specific  provisions  as  to 
obviate  the  necessity  of  any  arrangement  between  the  parties,  or 
reference  to  commissioners,  it  has  seemed  to  us  that  it  would  be 


652  STREET   RAILWAYS. 

leaving  the  parties  in  a  more  equal  relation,  and  with  more  pros- 
pect of  an  amicable  arrangement  among  themselves,  without  call- 
ing in  the  assistance  of  commissioners,  not  to  restrict  them  to  a 
single  mode  of  passage  over  the  trunk  road,  but  to  leave  both 
modes  open. 

There  is  no  doubt  a  liability  to  very  serious  embarrassment, 
where  two  lines  are  allowed  to  do  a  competing  business  upon  the 
same  track.  We  have  reflected  upon  some  expedient  to  cure,  or 
relieve,  this  evil.  It  might  be  done  by  prohibiting  the  company, 
entering  upon  the  line  of  another  company,  from  taking  up  pas- 
sengers not  intended  to  pass  over  any  portion  of  their  own  line ; 
but  this  would  produce  more  or  less  embarrassment  among  those 
who  might  desire  to  become  passengers,  without  understanding 
precisely  the  class  of  cars  to  which  they  legitimately  belonged. 
And  this  embarrassment  would  be  likely  to  exist,  continually,  to 
some  extent. 

(4.)  It  is  claimed,  by  those  interested,  in  different  directions, 
upon  this  question  ;  first,  that  when  the  legislature  grant  to  one 
street  railway  company  the  right  to  run  upon  the  track  of  another 
company,  there  is  no  implication  of  the  right  to  transport  passen- 
gers, whose  transit  begins  and  ends  upon  the  latter  company's 
track ;  and,  secondly,  that  they  may  do  any  portion  of  the  busi- 
ness upon  the  track  of  the  second  company,  the  same  as  if  they 
owned  the  track.  It  has  seemed  to  us  that  the  grant  to  one  street 
railway  company  to  run  upon  the  track  of  another  company,  must 
imply  the  right  to  carry  all  passengers  who  choose  to  embark 
upon  its  cars ;  but,  as  we  have  before  said,  we  cannot  regard  the 
traffic  which  is  limited  exclusively  to  the  trunk  line  as  legiti- 
mately belonging  to  the  branch  company,  for  their  own  advan- 
tage. We  think  the  net  profits  of  such  business,  as  before 
stated,  legitimately  belong  to  the  company  owning  the  track. 
This  distinction  may  seem  nice  to  some,  and  so  is  the  whole 
subject.  And  we  have  not  been  able  to  find  any  other  scheme 
whereby  the  public  convenience  and  the  rights  of  the  parties  can 
be  properly  accommodated  to  each  other.  For  it  cannot  be  ex- 
pected that,  if  the  branch  road  is  allowed  to  take  passengers  at 
all  upon  the  line  of  the  trunk  road,  it  should  be  required  to  dis- 
criminate between  such  as  desire  to  pass  beyond  the  limits  of  the 
trunk  road,  and  which  will  therefore  legitimately  belong  to  them, 


MODE  OF  ESTIMATING  USE  OF  OTHER  TRACKS.       653 

and  such  as  do  not  desire  to  so  pass  beyond  the  extent  of  the 
trunk  road,  and  which  therefore  does  not  legitimately  belong  to 
them.  And  we  cannot  believe  there  can  be  any  fair  question  but 
the  branch  line  may  and  should  be  permitted  to  take  up  all  pas- 
sengers intended  to  pass  over  any  portion  of  their  own  route, 
although  coming  from  the  line  of  the  other  company.  And  if 
so,  they  must  either  take  all  who  desire  to  come  upon  their  cars, 
or  else  they  must  ascertain  the  extent  of  their  proposed  transit, 
before  they  allow  them  to  come  upon  their  cars,  which  would  be 
a  somewhat  embarrassing  mode  of  conducting  the  traffic  upon 
street  railways,  and  one  which  it  would  not  be  reasonable  to 
adopt,  as  matter  of  construction  merely.  If  then  we  allow  the 
branch  companies,  having  grants  for  passing  over  the  trunk  com- 
pany's line,  to  do  the  business  legitimately  belonging  to  the  latter 
company,  in  order  to  afford  reasonable  accommodation  to  the 
public,  and  so  as  not  to  produce  confusion  in  the  manner  of  con- 
ducting the  traffic,  we  should  nevertheless  secure  to  the  trunk 
road  the  net  profits  of  their  own  legitimate  traffic,  as  seems  to  us 
most  unquestionable. 

(5.)  It  has  been  suggested  by  some,  that  where  a  branch  line 
is  permitted  to  carry  its  traffic  over  the  trunk  road,  thus  necessi- 
tating a  certain  number  of  trips  daily,  for  the  accommodation  of 
the  long  travel,  and  enabling  the  branch  road  to  perform  without 
embarrassment  a  portion  of  the  local  traffic  upon  the  trunk  road, 
that  the  frequency  of  the  trips  run  by  the  trunk  road  might,  and 
should,  be  proportionally  diminished.  We  have  no  doubt  some- 
thing of  this  kind  might  be  advantageously  done,  in  such  cases, 
and  that  it  would  become  the  general  mode  of  transacting  the 
business  upon  the  line,  and  be  for  the  mutual  interest  and  accom- 
modation of  all  parties  concerned,  if  the  mode  of  compensation 
for  the  use  of  the  track  were  required  to  be  estimated  upon  the 
basis  herein  before  indicated.  Upon  any  other  basis  of  estimat- 
ing such  compensation  we  should  fear  that  in  running  cars  of 
different  companies  over  the  same  tracks,  upon  a  route  suffi- 
ciently extensive  to  create  a  competing  business,  there  would 
always  grow  up  a  perplexing  state  of  conflict.  That  was  certainly 
the  result  of  the  testimony  before  us ;  but  we  believe  the  provi- 
sions recommended  by  us  in  regard  to  compensation  would  cure 
this  evil  to  a  great  extent. 


654  STREET   RAILWAYS. 

7.  The  relations  of  street  railways  "  to  the  use  of  the  streets 
by  ordinary  vehicles"  has  been  already  sufficiently  discussed 
perhaps.  It  is  certain  that  street  railways  have  become  so  much 
a  necessity  that  they  must  be  continued  ;  and  although  we  believe 
they  do  produce  a  considerable  obstruction  to  the  comfortable 
passage  of  other  vehicles  in  the  streets,  and  especially  where  such 
streets  are  narrow  and  very  much  thronged,  we  nevertheless  can- 
not believe  that  any  wiser  or  safer  course  can  be  adopted  than 
that  hitherto  in  operation,  of  leaving  it  to  the  municipal  boards 
to  regulate  and  accommodate  the  matter  as  they  best  can.  In  the 
testimony  given  before  us  it  was  indeed  stated  by  one  gentleman, 
that  in  consequence  of  the  great  facilities  offered  by  the  street 
railways  for  cheap  and  comfortable  transportation  of  passengers, 
many  persons  are  induced  to  ride  to  their  own  detriment,  and 
when  it  would  be  far  better  for  them  to  walk  than  to  ride  free  of 
charge,  and  we  have  no  doubt  this  may  be  true,  to  some  extent. 
But  that  is  certainly  not  true  of  the  largest  proportion  of  the 
passenger  traffic  upon  street  railways.  They  are  unquestionably, 
in  the  main,  a  very  great  convenience  and  accommodation  to  large 
masses  of  people  of  the  middling  classes,  in  respect  of  property, 
and  which  could  not  be  afforded  to  the  same  extent  in  any  other 
mode,  and  we  know  of  no  process  of  eliminating  the  evil  from 
the  good,  any  more  in  regard  to  this  subject  than  many  others. 
But  we  think  the  legislature,  and  the  municipal  authorities,  can- 
not be  too  cautious  in  regard  to  multiplying  these  grants,  or  loca- 
tions, where  they  are  intended  to  accommodate  substantially  the 
same  business  already  provided  for.  There  is  always,  in  such 
matters,  a  certain  reasonable  limit,  beyond  which  competition 
leads  both  to  the  destruction  of  the  competing  interests,  and  the 
neglect  and  disregard  of  public  accommodation,  and  which  should 
by  all  means  be  avoided.  The  number  of  vehicles  passing  at  dif- 
ferent points  in  Boston,  and  the  proportion  of  which  are  cars  and 
omnibuses,  will  appear  in  the  table  appended  to  this  Report. 

8.  And  this  leads  us  to  advert  to  another  question  which  was 
considerably  pressed  upon  our  consideration,  —  that  of  encourag- 
ing the  consolidation  of  all,  or  nearly  all,  the  street  railways 
leading  into  Boston.  This  is  a  subject  upon  which  a  good  deal 
may  be  said,  with  reason  and  justice,  upon  both  sides,  and  we 
are  not  prepared  to  say  that  any  certain  and  infallible  rule  can 


CONSOLIDATION,   OMNIBUSES,   ETC.  655 

be  laid  down  in  regard  to  it.  As  a  general  rule,  in  railway 
enterprises  of  magnitude,  the  more  interests  can  be  combined 
the  better,  both  for  the  public  and  the  companies,  both  interests 
being  nearly  identical.  But  this  proposition  can  only  be  admit- 
ted with  this  qualification,  that  the  conduct  and  management  of 
the  traffic  should  be  suitably  restrained  by  legislative  safeguards. 
There  is  always  more  danger  of  an  overgrown  monopoly  becom- 
ing dangerous  to  other  interests  of  a  rival  character,  just  in  pro- 
portion to  its  magnitude,  and  the  absorbing  and  overwhelming 
nature  of  its  influence  upon  the  other  vital  forces  of  society. 
And  this  is  said  without  intending  to  impute  any  lower  or  dif- 
ferent motives,  as  the  governing  principle  of  action,  in  such 
extensive  combinations  of  power,  than  in  those  of  more  moderate 
proportions  ;  all  that  is  meant,  is,  that  dangerous  tendencies  com- 
monly increase,  in  the  compound  ratio  of  their  magnitude  and 
continuance. 

It  is  sometimes  observed,  too,  that  such  combinations  of  power 
in  the  seat  of  a  great  metropolis,  where  the  other  agencies  of 
social  and  civil  life  and  progress  naturally  centre,  are  more  dan- 
gerous, and  more  insidious,  in  their  overshadowing  influence, 
than  where  it  is  more  extended  in  its  range,  and  consequently 
more  liable  to  be  checked  and  interrupted  by  counter  or  conflict- 
ing interests  and  influences.  From  all  these  considerations,  and 
others  which  we  have  no  time  to  name,  we  conclude,  that  while 
in  the  infancy  of  such  enterprises  there  will  generally  be  too  much 
of  a  tendency  to  minute  subdivision  of  conflicting  interests,  there 
commonly  grows  up,  as  they  become  popular  and  permanent, 
too  great  a  tendency  towards  consolidation.  This  seems  to  us 
more  objectionable  in  regard  to  street  railways,  whose  property 
is  attached  to  the  easement  of  the  public  highway,  than  in  those 
public  works  whose  franchise  attaches  to  an  easement  vested  in 
the  grantees.  In  New  York,  Brooklyn,  and  Philadelphia  the 
street  railway  companies  are  very  numerous ;  and,  in  most  re- 
spects, we  regard  this  as  more  desirable,  in  regard  to  street 
railways,  than  too  extensive  consolidation. 

9.  The  general  power  in  our  commission  to  examine  "  into 
the  whole  matter  of  the  conveyance  of  passengers  through  the 
streets  by  horse-cars  and  omnibuses,"  will  embrace  a  question 
raised  by  the  counsel  before  us,  whether  we  might  not  with  pro- 


656  STREET    RAILWAYS. 

priety  recommend  the  exclusion  of  omnibuses  from  all  the  streets 
where  railway  tracks  were  laid.  If  this  were  done,  by  a  legis- 
lative enactment,  it  might  become  difficult  to  satisfy  the  carriers 
by  these  different  modes  of  conveyance,  in  regard  to  the  streets 
which  each  should  occupy  ;  and  thus  be  liable  to  lead  to  constant 
bickering  and  contention  upon  the  subject.  It  would  undoubt- 
edly be  wise,  if  practicable,  to  exclude  both  these  classes  of 
vehicles  from  the  most  crowded  thoroughfares,  unless  they  were 
of  such  width  as  to  accommodate  all  the  travel  without  obstruc- 
tion or  confusion.  But  the  omnibuses,  while  they  injure  the 
streets  more  than  any  other  class  of  vehicles,  being  of  great 
weight  and  driven  with  considerable  rapidity,  do  not  obstruct 
the  other  travel  in  narrow  and  crowded  streets  so  much  as  the 
horse-cars,  for  reasons  already  indicated.  It  would,  therefore, 
be  an  invidious  and  unjust  discrimination,  to  exclude  the  omni- 
buses from  the  streets  most  frequented  by  passengers,  while  the 
cars  were  allowed  to  pass  there.  It  seems  to  us  impossible  to 
define,  by  legislation,  any  general  rule  upon  the  subject.  We 
think  it  should  be  left  to  the  discretion  of  the  municipal  authori- 
ties. 

10.  In  regard  to  "  the  manner  of  using  street  railway  tracks 
in  the  winter,"  and  clearing  them  of  ice  and  snow,  we  have  not 
deemed  it  important,  or  safe,  to  recommend  any  additional  legis- 
lative provisions.  That  is  a  subject,  where  prompt  action  and 
summary  powers,  in  the  municipal  boards,  are  more  indispensa- 
ble than  in  regard  to  any  other  matter  connected  with  the  subject. 
And  although  there  is  some  liability  to  have  the  companies 
visited  with  hasty  and  injudicious  orders  in  this  respect,  thus 
exposing  them  to  considerable  inconvenience  and  loss,  at  times, 
and  possibly,  in  some  cases,  to  a  needless  extent ;  it  did  not  ap- 
pear to  us  that  there  could  be  much  temptation  in  such  cases  to 
exercise  bad  faith  or  injustice  towards  the  railway  companies,  by 
the  municipal  boards  ;  and  as  the  interest  involved  is  not  one  of 
great  magnitude,  and  we  could  not  obtain  much  confidence  that 
any  legislative  provision,  or  any  other  recommendation  from  us, 
could  be  of  much  avail  towards  remedying  any  possible  evils 
which  might  arise  in  the  case,  we  deemed  it  wise  to  leave  the 
matter  as  it  is. 

There  was  some  testimony  before  us  tending  to  show,  that  in 


REMOVING   OBSTRUCTIONS   IN   WINTER.  657 

some  cases,  the  municipal  boards  had  permitted  the  railway  com- 
panies to  have  the  entire  duty  of  removing  the  ice  and  snow  from 
the  street,  so  that  it  did  not  interfere  with  the  travel  in  ordinary 
vehicles,  and  that  this  had  proved  useful  to  the  public  and  eco- 
nomical to  the  companies.  And  it  seemed  to  us  not  improbable 
that  some  such  arrangement  might  be  advantageously  adopted  in 
many  instances,  and  that  it  ultimately  would  be,  if  found  the 
most  beneficial  which  could  be  devised.  We  think  this  matter, 
like  many  others  of  a  kindred  character,  will  be  likely,  ulti- 
mately, to  regulate  itself,  by  the  exercise  of  judicious  supervision 
on  the  part  of  the  municipal  boards,  in  a  much  better  manner 
than  it  can  be  done  by  specific  legislative  provisions,  until  .at  least 
there  has  been  time  for  more  perfect  experience,  in  order  to 
reach  the  best  modes  of  action. 

11.  In  regard  to  "  the  motive  power  to  be  employed,"  we  have 
before  intimated,  that  we  had  extensive  opportunities,  during  our 
visit  in  New  York,  Philadelphia,  and  other  places,  to  witness*  the 
operation  of  steam  as  a  motive  power,  in  what  are  called  the 
dummy  engines,  upon  street  railways.  We  should  not  probably 
satisfy  the  desires  or  expectations  of  those  most  nearly  concerned, 
unless  we  gave  our  views  upon  the  subject  more  in  detail  than 
what  would  seem  necessary,  out  of  regard  merely  to  the  limited 
extent  of  the  specific  recommendations  ultimately  made  by  us, 
upon  this  particular  question. 

(1.)  We  examined  the  operation  of  one  of  these  engines  in 
New  York,  and  one  in  Philadelphia,  and  one  in  Hoboken,  New 
Jersey,  and  rode  after  each  of  them  for  considerable  distances, 
and  we  received  a  good  deal  of  testimony  upon  the  subject  from 
reliable  sources.  This  kind  of  motive  power  is  now  in  operation 
in  the  immediate  vicinity  of  Boston,  and  we  need  not  describe 
the  mode  of  its  operation  in  detail.  It  is  unquestionably  a  some- 
what more  economical  means  of  locomotion  than  that  of  horse- 
power, and  we  make  no  question  that  it  will  ultimately  come  into 
very  extensive  use  in  various  ways.  The  thing  is,  at  present, 
somewhat  in  its  infancy,  although  invented  some  years  since  by 
Mr.  Long,  the  patentee,  who  is  an  ingenious,  learned,  and  experi- 
enced machinist,  having  maintained  with  universal  acceptance  a 
high  position  in  the  engineer  corps  attached  to  the  navy,  and  who 
vol.  i.  42  *249 


658  STREET   RAILWAYS. 

has  expended  much  time  and  labor  in  bringing  the  machine  now 
in  nse  to  the  greatest  attainable  perfection.  But  it  would  not  be 
wonderful  if  still  greater  advance  should  be  made  in  that  direc- 
tion, and  perhaps,  ultimately,  of  such  a  character  as  greatly  to 
affect  the  extent  of  the  use  of  the  present  heavy  locomotive  en- 
gines upon  steam  railways. 

(2.)  It  has  seemed  to  us  most  unquestionable,  that  these 
dummy  engines  would  very  soon  be  brought  into  general  use 
upon  the  street  railways  in  rural  and  surburban  districts.  They 
seemed,  upon  repeated  experiments  in  stopping  and  starting,  to 
be  even  more  completely  under  the  easy  control  of  the  engineer 
than  an  ordinary  two-horse  team  is  under  that  of  the  driver. 
There  would  be  no  difficulty  in  this  respect,  in  running  these 
engines  in  any  portion  of  the  most  crowded  thoroughfares  of 
the  cities.  But  we  apprehend  there  will  be  other  embarrass- 
ments in  their  use,  in  such  places,  which  will  prevent  it  for  a 
considerable  time  to  come.  There  is  something,  apparently,  in 
the  noiseless  mode  of  the  approach  of  these  engines,  which  has 
thus  far  rendered  them  frightful  to  horses,  —  almost  or  quite  as 
much  so  as  the  common  locomotive  steam-engine.  And  from  the 
same  cause  we  should  apprehend  they  would  be  likely  to  produce 
accidents.  Persons  would,  we  fear,  be  constantly  liable  to  injury 
before  being  made  aware  of  their  approach  in  the  streets,  when 
very  much  crowded. 

From  these  considerations  and  some  others,  perhaps,  we  should 
be  apprehensive  it  might  be  a  considerable  time  before  these  en- 
gines would  become  of  common  use  in  the  crowded  streets  in  our 
cities.  But  these  views  and  opinions  are  merely  conjectural,  and 
may  not  be  justified  by  future  experience. 

(3.)  They  occupy  but  small  space,  and  possess  great  power  in 
ascending  steep  grades  to  the  extent  of  three  or  four  hundred 
feet  in  the  mile.  They  will  readily  propel  upon  favorable  grades, 
such  as  are  required  upon  the  steam  roads,  two  or  more  passenger 
cars  with  from  seventy-five  to  one  hundred  and  fifty  or  more  pas- 
sengers, at  the  rate  of  from  twelve  to  twenty  miles  an  hour.  We 
have  intended  to  make  all  our  statements  in  regard  to  the  use 
and  power  of  these  engines  with  caution,  so  as  to  be  sure  and  not 
exceed  the  facts. 

(4.)  From  all  we  saw  and  heard  we  came  to  the  conclusion 


COMMUTATION  TICKETS,  659 

that  the  public  mind  was  already  prepared  to  afford  these  dummy 
engines  a  fair  opportunity  to  prove  their  claims  to  public  confi- 
dence. And  it  seems  to  us  not  improbable  that,  at  no  very  re- 
mote day,  these  engines  will  be  the  most  economical  motive  power 
in  all  the  short  and  light  passenger  traffic  upon  steam  railways, 
and  will  come  into  general  use  on  street  railways,  unless  it  be  in 
crowded  thoroughfares. 

12.  In  regard  to  "  the  systems  of  commutation  tickets  to  be 
adopted,"  there  was  a  good  deal  said  and  testified  before  us,  and 
much  conflict  of  opinion  ;  and  no  mode  has  occurred  to  us  where- 
by we  could  hope  to  reconcile  these  conflicting  opinions.  It  is 
probable  a  good  deal  of  this  contrariety  of  opinion  results  from 
the  fact  that  this  matter  of  commutation  tickets,  or  checks  given 
upon  one  road  to  enable  passengers  to  pass  over  the  line  of  an- 
other company,  will  affect  the  different  companies  very  differently. 
And  no  doubt  much  of  it  is  attributable  to  the  novelty  of  the 
experiment  and  the  little  opportunity  which  has  thus  far  been 
given  for  settling  the  basis  of  a  system  upon  the  subject.  The 
project  which  was  enacted  at  the  last  session  of  your  honorable 
body  upon  this  subject,  was  a  good  deal  complained  of  as  being 
imperfect,  unequal  in  some  respects,  and,  above  all,  too  compli- 
cated ;  and,  as  was  urged  by  some,  not  clearly  and  readily  under- 
stood by  the  conductors  and  subordinate  employees  of  the  different 
companies,  thereby  creating  a  good  deal  of  uncertainty  and  per- 
plexity to  the  companies  and  frequent  disappointments  and  severe 
complaints  from  passengers.  There  probably  is  some  foundation 
for  these  complaints.  But  we  were  satisfied  there  had  not  been  a 
very  earnest  effort  to  make  the  thing  work  in  the  best  possible 
manner,  especially  among  those  who  were  not  expecting  to  be 
specially  benefited  by  the  system.  We  believe  the  present  sys- 
tem might  be  made  to  operate  well  enough,  and  without  any  very 
considerable  embarrassment  to  companies  beyond  what  is  always, 
more  or  less,  incident  to  all  changes  in  the  mode  of  collecting 
fares,  and  especially  changes  rendering  the  system  more  complex. 
We  think  it  specially  desirable  to  keep  the  mode  of  collecting 
fares  upon  street  passenger  conveyances  as  simple  as  possible. 
We  are  not  by  any  means  confident  that  the  system  would  not  be 
improved,  both  for  the  companies  and  the  public,  by  a  perfectly 
uniform  fare,  payable  always  in  the  same  mode  and  with  no  com- 


GGO  STREET  RAILWAYS. 

mutation  whatever,  thus  abolishing  the  use  of  tickets  sold  below 
the  prices  of  single  fares.  This  is  believed  to  be  the  wisest  sys- 
tem for  street  railways  by  many  experienced  persons.  But  it  is 
one  of  those  matters  of  detail  which  can  best  be  regulated  by  the 
companies  themselves,  their  own  interest  and  that  of  the  public 
being  nearly  identical,  although  operating  in  different  directions, 
—  the  one  desiring  to  reducg  single  fares,  and  the  other  to  in- 
crease the  general  aggregate  of  traffic  in  such  a  manner  as  to 
increase  the  net  profits. 

It  does  not  seem  to  vis  there  is  much  demand  for  any  system 
of  commutation  or  exchange  tickets  upon  street  railways.  The 
true  theory  is,  in  our  judgment,  to  allow  the  lowest  living  com- 
pensation for  a  given  distance,  and  then  require  the  passengers  to 
assume  the  loss  resulting  from  special  accommodation  within  the 
range  of  the  route.  This  special  accommodation  is  most  fre- 
quently demanded,  by  way  of  subdivision  of  the  trip.  It  would 
no  doubt  afford  great  accommodation  to  passengers  if  they  could 
be  allowed  to  subdivide  the  trip  indefinitely.  In  a  single  trip 
within  the  limits  of  the  city  of  Boston,  without  passing  over  the 
same  track  more  than  once,  it  might,  no  doubt,  be  convenient  for 
some  passengers  to  ride  in  ten  different  cars,  in  some  extreme 
cases,  and,  in  numerous  cases,  in  three  or  four  different  cars.  It 
is  evident,  therefore,  that  no  system  could  be  lived  under  which 
should  allow  the  passenger  to  change  cars  at  will,  with  no  increase 
of  fare.  If  there  is  to  be,  as  it  is  evident  there  must  be,  some 
additional  fare  paid  for  each  change  of  cars,  there  will  always  be 
some  uncertainty  in  regard  to  the  precise  amount  which  should 
be  required  in  order  to  compensate  the  expense.  It  will  be  very 
difficult  to  fix  upon  any  general  rule  which  shall  be  sure  to  afford 
full  compensation  short  of  requiring  an  additional  fare  for  each 
change.  And  we  think,  as  the  change  of  cars  is  solely  for  the 
accommodation  of  the  passengers,  there  should  always  be  com- 
pensation for  it,  and  that  all  doubts  should  be  resolved  against 
the  party  for  whose  benefit  they  are  caused.  It  seems  to  us, 
therefore,  both  on  the  score  of  justice  and  simplicity,  that  if  we 
were  to  take  the  matter  entirely  new  we  should  leave  it  upon  the 
basis  of  requiring  an  additional  fare  for  every  additional  passage, 
unless  and  until  the  companies  found  it  for  their  advantage,  in 
order  to  give  the  public  accommodation  demanded  in  the  most 


COMMUTATION  TICKETS.  GG1 

acceptable  manner,  to  devise  some  scheme  of  compromise  in  re- 
gard to  checks  for  different  lines,  believing  that  it  would  be  sure 
ultimately  to  be  done  in  the  best  manner  in  that  way.  But  since 
a  statute  has  been  enacted  upon  this  subject  with  the  apparent 
concurrence  of  those  interested,  we  have  felt  reluctant  to  recom- 
mend its  entire  repeal  until  it  has  been  fairly  and  fully  tried,  and 
we  do  not  consider  this  has  yet  been  done.  If  we  were  to  recom- 
mend any  modification  of  the  existing  provisions  upon  the  sub- 
ject, we  should  desire  to  substitute  for  them  a  general  provision, 
that  any  passenger  desiring  to  pass  from  any  one  point  in  any  city 
or  town  to  any  other  point  in  the  same  city  or  town,  where  the 
passage  could  not  be  effected  in  a  single  car,  but  might,  by  means 
of  different  cars,  whether  of  the  same  or  different  companies, 
such  persons  should  be  allowed,  by  paying  the  highest  fare  re- 
quired for  a  passage  in  any  portion  of  such  town  or  city,  and  one 
cent  in  addition  for  each  check,  to  receive  checks  entitling  him 
or  her  to  the  immediate  completion  of  such  continuous  passage 
in  any  car  running  within  the  limits  .of  such  town  or  city,  with 
the  provision  that,  if  such  passenger  should  attempt  to  use  such 
checks  for  any  other  purpose  or  at  any  other  time,  he  or  she 
should  be  liable  to  the  same  penalties  as  in  other  cases  of  evasion 
of  lawful  fare.  This  will  be  an  accommodation  beyond  the  actual 
compensation,  but  as  the  matter  is  hereby  simplified  very  much, 
and  as  it  could  not  be  attended  with  serious  loss  to  the  company, 
and  might  increase  the  traffic  to  some  extent,  by  affording  greater 
accommodation,  we  should  prefer  this  form  of  commutation  to 
any  other  which  has  occurred  to  us,  if  we  were  to  recommend  any 
change.  This  mode  is  not  liable  to  the  same  abuse  as  that  now 
in  force.     We  have  inserted  a  section  in  the  bill  to  this  effect. 


662  NOTES. 


Note  IV.  to  §  124,  ante,  p.  447. 

A  provision  in  the  charter  of  a  R.  R.  corporation  that  proprie- 
tors of  certain  wharves  and  lands  should  have  the  right  to  con- 
struct upon  such  wharves  and  lands  railroads  connecting  with 
the  main  road,  and  of  entering  upon  that  road  with  their  cars 
and  vehicles,  "  and  that  the  owners  and  conductors  of  said  cars 
and  vehicles  shall  be  liable  to  pay  the  same  and  no  other  rates  of 
toll,  and  be  subject  to  the  same  rules,  regulations,  and  provisions 
as  the  owners  and  conductors  of  other  cars  and  vehicles  travel- 
ling upon  said  main  road,"  does  not,  since  the  passage  of  the 
Stat,  of  1845,  c.  191,  regulating  and  limiting  the  rights  of  con- 
necting roads  to  use  a  railroad,  give  the  proprietors  of  those 
wharves  and  lands  the  right  to  have  goods  transported  in  the 
cars  of  the  corporation  owning  the  railroad  at  the  same  rates  and 
no  higher  than  those  charged  to  others  for  the  same  and  similar 
kinds  of  goods. 

A  railroad  corporation  is  not  obliged  as  a  common  carrier 
to  transport  goods  and  merchandise  for  all  persons  at  the  same 
rates. 

In  an  action  to  recover  for  transporting  merchandise  over  a 
railroad,  in  the  absence  of  a  special  contract,  evidence  is  admissi- 
ble that  the  plaintiffs  raised  their  charges  without  giving  notice 
thereof  to  the  defendant,  and  without  his  knowing  that  they 
were  different  from  what  he  had  been  accustomed  to  pay.  Fitch- 
burg  Railroad  Company  v.  Gage,  12  Gray,  393. 


NOTES.  663 


Note  V.  to  §  17,  ante,  p.  53. 

A  promissory  note  payable  to  a  person  by  name,  adding  treas- 
urer, &c,  naming  a  railway  corporation,  must  be  regarded  as 
payable  to  the  person  named  and  not  to  the  corporation.1  But 
such  a  note,  given  for  a  conditional  subscription  of  stock,  must 
be  regarded  as  a  waiver  of  the  condition,  and,  if  executed  some 
time  after  the  date  of  the  subscription,  cannot  be  construed  as 
part  of  the  contract  of  subscription.2 

A  corporation,  after  having  claimed  and  exercised  corporate 
powers  for  a  considerable  time,  will  be  estopped  from  denying 
its  corporate  existence.3  It  is  said  in  some  cases,  that  if  the  cor- 
poration contracts  by  a  style  which  is  usual  in  creating  corpora- 
tions, and  which  discloses  the  names  of  no  natural  persons,  that 
the  corporate  existence  will  be  implied  and  need  not  be  averred.4 
But  in  general  such  a  proposition  would  not  be  regarded  as 
maintainable  in  suits,  either  in  favor  or  against  a  corporation ; 
it  should  be  described  as  such  in  the  declaration,  with  its  central 
place  of  doing  business. 

It  has  been  held,  that  where  defendants,  sued  as  a  corporation, 
rely  upon  the  fact  that  the  corporate  existence  has  ceased  before 
the  institution  of  the  suit,  it  must  be  pleaded  in  abatement  and 
not  in  bar  of  the  action.  But  in  general  the  want  of  corporate 
existence  and  power  may  be  shown  at  any  time  before  judgment, 
upon  proper  notice  and  special  plea.5  A  party  who  has  sued  a 
corporation  and  recovered  judgment  against  them  by  a  particu- 
lar name,  is  afterwards  estopped  from  denying  the  corporate 
existence.6  But  this  seems  not  altogether  in  accordance  with 
the  requirement  that  estoppels  be  mutual,  unless  the  judgment 

1  Chadsey  v.  McCreery,  27  111.  R  253. 

2  O'Donald  v.  E.  Ind.  &  CI.  Railw.  Co.,  14  Ind.  R  259. 

8  Callender  v.  Painesville  &  H!  R  R  Co.,  11  Ohio  St.  516 ;  The  Atlantic  & 
Ohio  R  R  v.  Sullivant,  5  Ohio  St.  276.  See  also  Ashtabula  &  New  L.  R  R 
Co.  v.  Smith,  15  Ohio  St.  328. 

4  Stein  v.  Ind.  &c.,  Association,  18  Ind.  R  237. 

s  Meikel  v  The  German  Savings  Fund  Society,  &c.,  16  Ind.  R  181. 

6  Pochelu  v.  Kemper,  14  Louis.  Ann.  308. 


664  NOTES. 

were  between  the  same  parties.  Such  an  estoppel  would  there- 
fore only  operate  as  between  the  plaintiff  in  the  former  suit  and 
the  corporation. 

The  cases  are  very  numerous  where  it  has  been  held  that  a 
party  who  gives  a  written  contract  to  a  corporation  by  a  particu- 
lar name  is  estopped  to  deny  the  existence  and  name  of  such 
corporation.7 

And  in  all  cases  of  the  plea  of  nul  tiel  corporation,  proof  of  a 
corporation  in  fact  will  be  sufficient.7 

7  Hubbard  v.  Chappel,  14  Ind.  R.  601. 


END   OF   VOL.   I. 


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